Get ready for the next abortion lawsuit

Expect it in a couple of months.

Texas’ proposed rules requiring the cremation or burial of fetal remains “will almost certainly trigger costly litigation,” reproductive rights lawyers say.

In a letter to the Texas Department of State Health Services, lawyers with the Center for Reproductive Rights on Monday argued that the new rules — proposed at Gov. Greg Abbott‘s directive — are “plainly in violation” of the legal standard abortion regulations must meet to be deemed constitutional.

In a fundraising email sent to supporters last month, Abbott said he didn’t believe fetal remains should be “treated like medical waste and disposed of in landfills.”

With little notice and no announcement, Texas health officials in July proposed new rules to prohibit abortion providers from disposing of fetal remains in sanitary landfills, instead allowing only cremation or interment of all remains — regardless of the period of gestation. The burial or cremation rule seems to also apply to “spontaneous abortions,” or miscarriages.

A similar measure was signed into law in Indiana but was later blocked by a federal judge.

“Texas politicians are at it again, inserting their personal beliefs into the health care decisions of Texas women,” Stephanie Toti, senior counsel for the Center for Reproductive Rights, in a statement. “The Center for Reproductive Rights is prepared to take further legal action to ensure that Texas women can continue to access abortion and other reproductive health care without interference by politicians.”


In defending the rule change, state health officials previously said it was proposed in “the best interests of the public health of Texas” and to affirm the “highest standards of human dignity.” In the fundraising letter, Abbott cited the rule change in saying that Texas is working to “turn the tides” against the abortion industry in the state and protect the “rights of the unborn.”

But the reproductive rights lawyers say the disposal requirements are “burdensome for both abortion care and miscarriage management.” And they say the proposed rules are out of line with the legal standard for abortion — that the burdens imposed on women from restrictions on the procedure cannot outweigh the benefits they provide the state, like promoting health.

That legal standard was clarified by the U.S. Supreme Court in its recent decision overturning Texas’ 2013 abortion restrictions. The center represented Texas abortion providers in that lawsuit, formally known as Whole Woman’s Health v. Hellerstedt. 

I had not followed the rules change story – see BOR here and here for further reading on it – but you can see where this is heading. Between this and the BS “medical” pamphlet that gets pushed on abortion patients, there is definitely a case that these are “undue burdens” under the Hellerstedt decision. That’s not a slam dunk – remember as always that the Fifth Circuit will be involved in any litigation, and they upheld HB2 – and it will take some time (and money) to get a suit filed, get a hearing, and hopefully get an injunction for the interim. The anti-abortion zealots will never stop pushing boundaries. It’s what they do. The Current has more.

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