Image by Steve Rhodes
When we think of burial or cremation, we think of people. That connection is why the state of Texas changed its rules on the disposal of fetal tissue from miscarriages and abortions, mandating that medical facilities dispose of the tissue through cremation or burial.
The Center for Reproductive Rights (CRR) called the new Texas regulations an attempt “to restrict a woman’s right to access safe and legal abortion by increasing both the cost of reproductive healthcare services and the shame and stigma surrounding abortion and pregnancy loss.” Early this week CRR filed a lawsuit against Texas to prevent the regulations from going into effect on December 19.
On Thursday December 16, federal Judge Sam Spark ruled that the state must delay implementation of the cremation/burial rules, and scheduled a preliminary injunction hearing beginning January 3.
That Texas is using backhanded methods of preventing women from accessing legal abortion care isn’t surprising; the state has been using these tactics for years. What is startling—although perhaps it shouldn’t be—is Texas’s blatant disregard for the U.S. Supreme Court’s June decision in Whole Woman’s Health v. Hellerstedt. That ruling struck down a Texas law requiring abortion clinic physicians to have admitting privileges at a hospital and clinics where abortions are performed to meet surgical center requirements. The Court ruled the law placed an undue burden on women seeking legal abortions.
Texas quietly proposed its new regulations just four days after the Hellerstedt decision, despite the new rules’ similarities to those struck down by the Supreme Court. Forcing women’s health clinics to tack on another expensive addition to the abortion process raises the cost for patients, making abortions less accessible to women in poverty. And it doesn’t serve any legitimate medical purpose. Putting a substantial obstacle in women’s path to legal abortion without any medical justification is exactly what the Supreme Court ruled on in Hellerstedt.
“These regulations are an insult to Texas women, the rule of law and the U.S. Supreme Court, which declared less than six months ago that medically unnecessary restrictions on abortion access are unconstitutional,” says Nancy Northup, CRR’s president and CEO.
Unfortunately, the new rules in Texas requiring fetal tissue to be cremated or buried aren’t unique. “Texas, Indiana and Louisiana are all part of a recent trend of states mandating that embryonic and fetal tissue that results from abortions is buried or cremated,” observes Amanda Allen, senior state legislative counsel at CRR. “A handful of states, including Minnesota and Georgia, passed laws on the same topic decades ago, but those statutes also allow disposal in other ways approved by the public health department, or they apply only to certain stages of fetal development. Because this new wave of embryonic and fetal tissue burial or cremation requirements provide no similar exemptions, they are stricter than the older laws.”
Indiana House Enrollment Act 1337—signed by now Vice President-elect Mike Pence last spring—requires fetal tissue to be cremated or buried and forces parents to decide how the fetal tissue is to be disposed of. Louisiana’s Act 593 also requires fetal tissue be cremated or buried. In April 2016, the American Civil Liberties Union of Indiana (ACLU) and Planned Parenthood of Indiana and Kentucky sued Indiana over Act 1337, and on June 30th, a district court granted a preliminary injunction. Louisiana Act 593 is also tied up in the courts, thanks to a suit by CRR.
Women seeking abortions face two hurdles: cost and stigma. If any of these new regulations regarding the disposal of fetal tissue take effect, the height of both of these hurdles will be raised. Implying the personhood of a fetus through the emotionally charged language of cremation and interment purposefully heightens the stigma against women who have abortions. States that mandate these actions are in essence calling women who have legal abortions murderers.
In an environment of heightened violence against abortion providers and those seeking abortions, these implied accusations are dangerous. According to the National Abortion Federation, ninety-four death threats or threats of harm against abortion providers were reported in 2015 as compared to only one in 2014. And the Feminist Majority Foundation reports that in 2014, 27.9 percent of abortion clinics surveyed reported being impacted by pamphlets targeting doctors and clinic staff. That number is up from 18.8 percent in 2013.
Fetal tissue disposal laws are simply the latest in a long list of shady tactics conservative politicians have used to regulate women’s bodies. No doubt that list will grow more quickly as the current political atmosphere empowers misogynistic legislators at the state and federal levels.