Striking down abortion restrictions is a game of whack-a-mole: Courts can declare some of them unconstitutional but, inevitably, more laws will pop up.
Now, in the wake of the Supreme Court’s decision in Whole Woman’s Health, which struck down significant portions of a Texas law, anti-abortion legislators may have found their most creative approach yet: requiring abortion providers to bury or cremate fetal tissue, instead of following the standard protocols for medical waste disposal.
And earlier this month, the Texas Health and Human Services Commission released proposed rules requiring the burial or cremation of fetal tissue. The rules were unceremoniously published just days after the Whole Woman’s Health decision without going through the state legislature. They are now subject to a 30-day public comment period and are predicted to go into effect in September.
Anti-abortion groups—like Americans United for Life (AUL), the driving force behind these burial and cremation requirements—say that this is a matter of protecting human “dignity.” But abortion-rights advocates note that these measures place yet another burden on women’s health providers, potentially raising costs or impacting abortion access.
“We are still trying to figure out what the rules look like in practice,” Zoey Lichtenheld, communications director for NARAL Pro-Choice Texas, told The Daily Beast. “But generally, measures that restrict embryonic and fetal tissue disposal can be impossible for abortion clinics to comply with and have the potential to block Texans’ access to abortion.”
In the absence of these measures, fetal tissue is treated like any other form of human medical waste. Under the current Texas rules, for example, discarded human body parts and organs can be incinerated and placed in a sanitary landfill or ground and discharged into a sanitary sewer system. Abortion providers generally maintain contracts with third parties who dispose of fetal tissue in this way.
But if these requirements become commonplace, abortion providers would have to jump through additional hoops to dispose of their medical waste. Current Indiana law states that women themselves are “responsible for the costs related to the final disposition of the aborted fetus” if they choose to use their own funeral home but, otherwise, abortion providers “shall provide for” the cost.
The proposed Texas rules would apply to all fetal tissue “regardless of the period of gestation” and would likely require abortion providers to establish relationships with funeral homes and cemeteries instead of following their current practices.
AUL, the anti-abortion law firm that drafted model legislation requiring the burial and cremation of fetal tissue, claims that this issue isn’t about inconveniencing abortion clinics but rather respecting fetuses.
“Deceased unborn infants deserve the same respect as other human beings,” AUL staff attorney Anna Paprocki told The Daily Beast. “They should not be disposed of as ‘medical waste’ when they die before birth, regardless of whether their deaths are spontaneous, accidental, or induced.”
Texas officials, meanwhile, have danced around the question of added burial and cremation costs. The proposed disposal rules, as KVUE first reported, cite research conducted by Renee Clack, an official with the Texas Department of State Health Services (DSHS), but come to no clear conclusions about the financial effect on abortion providers.
Clack reportedly found that there was “a potential fiscal impact” for abortion providers but did “not have information sufficient to quantify the impact.”
The rules do claim that “the department has no information to suggest that the cost of implementing the proposed changes would result in any greater cost” but this is different from stating that the department has evidence that abortion providers will not be financially impacted.
When asked to clarify this language, DSHS did not respond to The Daily Beast.
“They don’t care if it burdens clinics or if it burdens Texas women,” said Lichtenfeld. “This rule was passed as backlash to the recent Supreme Court decision in Texas.” At this point, the exact consequences of burial and cremation laws are still uncertain because they are so new. “I don’t think we know what the impact is going to be,” Guttmacher Institute state issues manager Elizabeth Nash told Vox in March with respect to Indiana’s law. “This has never been required before for all fetal tissue.”
But there are already hints of inconvenience coming out of the Hoosier State. Patti Stauffer, vice president of policy at Planned Parenthood of Indiana and Kentucky, told The Atlantic that they have already had trouble contracting funeral homes to do the work.
“It’s not like we have hundreds of people that are interested in working with us,” she said.
In this way, burial and cremation requirements could function like one of the provisions the Supreme Court struck down in Whole Woman’s Health, which required abortion providers to have formal admitting privileges at a local hospital. Not all hospitals are willing to enter into such an arrangement, and not all funeral homes would be, either.
Although the Whole Woman’s Health ruling will have far-reaching consequences, it has no immediate impact on this new trend of burial and cremation requirements, as Paprocki told The Daily Beast.
“While states cannot ‘unduly burden’ a woman’s access to abortion, it remains true after Whole Woman's Health v. Hellerstedt that they can enact laws that acknowledge the humanity of unborn infants who die from abortion,” she said.
And whatever their impact, more of these measures could be passed in Republican-controlled state legislatures—and soon.
“This continues to be a priority for the next legislative sessions,” Paprocki noted