Texas Floats Radical New Abortion Laws

In the wake of Trump’s election, Texas Republicans have filed multiple bills that would ban abortions even for fetal abnormalities and require ‘proper burial’ for miscarriages.

Photo Illustration by Kelly Caminero/The Daily Beast

The Supreme Court’s partial strike of House Bill 2, a sweeping Texas abortion law meant to shutter the state’s clinics, has seemingly had no effect on the can-do spirit of state Republican lawmakers looking to restrict and control access for women seeking the procedure.

In fact, the wildest among them seem to be doubling down.

As documented by the Dallas Morning News, Texas Republicans filed multiple bills yesterday for consideration in the next legislative session that would, among other restrictions, bar women from obtaining abortions due to fetal abnormalities and put into effect rules that would require the burial or cremation of fetal remains in all cases, including abortion, miscarriage, and stillbirth.

Joint Resolution 9 seeks to add a Constitutional Amendment prohibiting abortion to "the fullest extent authorized under federal constitutional law as interpreted by the United States Supreme Court." Texas voters would have to approve the amendment after a two-thirds vote in both chambers put it on the ballot. SJR 9 was filed by Sen. Bob Hall, a Tea Party Republican who won his 2014 election in part campaigning on the idea that Satan had “a stranglehold” on his fellow Republican opponent.

Should a woman access abortion in the Lonestar state, House Bill 201, filed by Rep. Byron Cook, would address the issue of how to dispose of the fetal remains. If the bill becomes law, an abortion provider or any facility that provides care to a woman during abortion or miscarriage would be required to bury or cremate the fetus. Under current rules, fetal tissue is allowed to be incinerated or ground until unrecognizable and disposed of at a sanitary landfill.

Cook, a 14-year Texas House veteran, called these methods of disposal “gruesome” and “appalling” in letters to the state’s Health and Human Services Commission, which influenced Texas Governor Greg Abbott to publish new (unenforceable) rules without legislative approval.

“Governor Abbott believes human and fetal remains should not be treated like medical waste, and the proposed rule changes affirms the value and dignity of all life,” Abbott’s office said in a statement at the time.

An August hearing to discuss the rule brought out opponents who questioned Cook and Abbot’s motives, as well as the logistics of such a broad mandate. Doyin Oyeniyi summarized in Texas Monthly: “Would every abortion and miscarriage now require a death certificate and a funeral director? For women who have spontaneous miscarriages (about 10 to 15 percent of women who know they are pregnant), if it occurred at home or outside of a hospital or clinic, would they then be responsible for bringing the embryonic or fetal tissue to a doctor’s office or hospital for proper disposal?”

These questions have gone unanswered. Regardless, with HB 201, Rep Cook hopes to finally enforce the rule. According to The Atlantic, laws governing fetal remains are fairly new, and gaining popularity: Indiana, Arkansas, and Georgia have laws requiring burial and cremation of fetal remains, while South Dakota, Idaho, Alabama, and Tennessee have all passed recent legislation governing where fetal remains can and cannot go.

Back in Texas, with the most controversial House Bill 87, state Rep. Matt Schaefer suggests a ban on abortions for women after 20 weeks in the case of fetal abnormalities. Current law allows for abortions after the 20-week mark when the pregnancy is nonviable, when the life of health of the mother are at serious risk, or in cases of severe abnormalities.

If House Bill 87 passes, Texas will be the second state to pass such a law. In 2013, North Dakota passed legislation that made it illegal to access abortion on the basis of sex selection or genetic abnormalities. Indiana followed suit in 2016, with HB 1337, a far-reaching abortion law that included the prohibition of fetal abnormalities as a lawful reason for abortion. A federal judge issued a temporary injunction for Indiana’s law in June, ruling it violated a woman’s right to choose.

Schaefer—whom Texas Monthly christened among the worst legislators in the state in 2015—defended a similar amendment before the legislature in 2015, arguing that abortion of fetuses with abnormalities, even those that would suffer and die immediately after birth, was an abomination to God.

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To explain the pain and suffering of mothers and their terminal babies, Schaefer said before the audience, “That’s part of the human condition, when sin entered the world.”

Schaefer has found little legislative success: In 2015, no part of his bill even made it to the House floor. And clearly, the other sponsors are also extremists.

But these men who would do away with abortion, elected by and loyal to the Tea Party, might find more success or at least more support in a nation ruled by President Donald Trump. The President-elect was voted into office in part on a promise to fill the Supreme Court with Justices who would overturn Roe v Wade, the 1973 decision that ultimately reversed the 2013 Texas law that required doctors to have hospital admitting privileges and clinics to meet standards for ambulatory surgical centers. These costly or impossible provisions had effectively closed half the state’s clinics.