Judge strikes down Texas mandatory fetal burial law
AUSTIN — A federal judge on Wednesday struck down a Texas law that requires fetal and embryonic tissue from most failed pregnancies be buried or cremated, striking a blow to anti-abortion activists and delivering another defeat to the Texas Attorney General’s Office, which defended the law in court.
It is the third Texas law restricting abortion to be overturned by the courts in recent years, but the state’s lawyers are expected to quickly appeal Wednesday’s decision by U.S. District Judge David Ezra. That would send the case to the 5th U.S. Circuit Court of Appeals, considered one of the most conservative federal appellate courts in the nation.
Texas lawmakers approved the fetal burial law in 2017, testing out a new anti-abortion strategy focusing on the fetus. The law would require hospitals and abortion clinics to arrange for fetal and embryonic remains to be buried or cremated, regardless of the woman’s wishes or religious beliefs. The law does not apply to at-home abortions but does apply to the remains from miscarriages and ectopic pregnancies.
Opponents argue the forced interment is another example of government officials enacting laws to shame women and create more hurdles for those who want abortions.
Ezra ruled that the law created “substantial obstacles” for women, doctors and abortion clinics while offering “absolutely no health benefit in return.”
The judge offered a glimmer of hope to the supporters of the fetal burial law, saying the state has a legitimate interest in protecting the dignity of life. However, in issuing a permanent injunction on the law, Ezra concluded that its speedy implementation and the lack of resources to facilitate the burials and cremations created on undue burden on women.
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“What we do know is that these laws get introduced and passed under the sham of protecting women, when in reality it’s a political agenda,” said Andrea Ferrigno, a vice president of Whole Woman’s Health, one of the plaintiffs in the case.
Texas Attorney General Ken Paxton called the ruling disappointing and vowed to appeal the case.
“I remain confident the courts will ultimately uphold the Texas law, which honors the dignity of the unborn and prevents fetal remains from being treated as medical waste,” Paxton said in a statement. “My office will continue to fight to uphold the law, which requires the dignified treatment of fetal remains, rather than allow health care facilities to dispose of the remains in sewers or landfills.”
The overturning of the fetal burial law comes on the heels of a 2016 U.S. Supreme Court ruling that struck down a pair of Texas regulations that forced the closure of several abortion clinics in Texas. Anti-abortion advocates are hopeful the pending appointment of Judge Brett Kavanaugh to the high court will solidify a conservative Supreme Court that could undercut abortion rights.