We were warned it would need to happen.
Despite intense outcry from the medical community, reproductive rights advocates and funeral directors, Texas isn’t budging on a proposed rule to require the cremation or burial of fetal remains.
Following an initial public comment period that sparked medical concerns and a legal threat, Texas health officials have re-submitted for public consideration a proposed rule change that prohibits hospitals, abortion clinics and other health care facilities from disposing of fetal remains in sanitary landfills, instead allowing only cremation or interment of all remains regardless of the period of gestation — even in instances of miscarriages.
After considering hours of public testimony at an August hearing and more than 12,000 comments submitted in writing, the state made no changes to the rules, which are set to be published in the Texas Register on Sept. 30.
The rules were re-published “after reviewing the feedback and comments we received,” health commission spokeswoman Carrie Williams said on Wednesday. This will require another 30-day public comment period before the rules can go into effect.
The proposed rule has prompted outrage from the reproductive rights community, which has accused state leaders of enacting unnecessary regulations. Medical providers — including the Texas Medical Association and the Texas Hospital Association — also questioned why the rule change does not allow an exception for miscarriages and ectopic pregnancies.
Despite making no revisions to the rules themselves, the commission has amended its analysis on the financial impact of the rule on health care organizations that must comply, saying the rules won’t increase “total costs” for health care facilities.
Medical professionals and funeral directors had raised concerns about who would bear the costs associated with cremation or burial — a figure that can reach several thousands dollars in each case — and questioned whether the new would trigger a requirement for death certificates so that fetal remains could be cremated or buried. (Under current rules, the state requires funeral directors or a “person acting as such” who take custody of a dead body or fetus to obtain an electronic report of death before transporting the body, according to the Funeral Consumers Alliance of Texas.)
The amended fiscal analysis indicates that the methods allowed in the proposed rules “may have a cost” but “that cost is expected to be offset” by costs currently incurred by facilities. Hospitals and abortion providers currently contract with third-party medical waste disposal services.
See here and here for the background. All this happened by executive order, with no legislative input or public hearings, in the immediate aftermath of the SCOTUS decision striking down the odious HB2. If the words “undue burden” have not formed in your head by now, you need to go back and read that decision again. I guarantee, once this rule is in place, a lawsuit will follow.