By Samantha Ketterer
The Dallas Morning News
WWR Article Summary (tl;dr) Days after the Supreme Court struck down parts of a law that would have restricted abortion access in Texas, the state introduced rules that require health care facilities to bury or cremate fetal remains, regardless of the period of gestation. Women’s health groups are working on a potential lawsuit opposing the rules. Any lawsuit would need to be filed by next week because the rules are set to take effect Dec. 19.
Health providers and abortion clinics have less than two weeks to figure out how to comply with Texas’ new fetal remains rules, that is, if a lawsuit doesn’t halt the process first.
Amy Hagstrom Miller, founder of abortion provider Whole Woman’s Health, said she is working with the Center for Reproductive Rights on a potential lawsuit opposing the rules. Any lawsuit would need to be filed by next week because the rules are set to take effect Dec. 19.
“Here we are, with a situation where Texas is trying to restrict access to safe abortion care by any means necessary,” she said. “It’s really cruel.”
The rules have drawn controversy since their introduction in July. Days after the Supreme Court struck down parts of a law that would have restricted abortion access in Texas, the state introduced rules that require health care facilities to bury or cremate fetal remains, regardless of the period of gestation.
The Texas Department of State Health Services’ rules, which were suggested under the direction of Gov. Greg Abbott, were finalized after two public comment periods in which the state received more than 35,000 comments. The comments were nearly split between groups for and against the rules.
Abbott said the rules are meant to uphold the dignity of the unborn fetus instead of treating it as medical waste. Opponents claim the rules attempt to attribute “personhood” to a fetus and could be a deterrent, or limit access, for women seeking an abortion.
The state says the rules will help prevent health risk and won’t restrict access to abortion. Officials wrote in September that the health department has the authority to make rules to protect the public from the spread of communicable disease.
Health care entities haven’t said how they will comply. Hagstrom Miller, one of the plaintiffs in the Supreme Court abortion case, said that she is still working on a path to compliance but that Whole Woman’s Health is first trying to determine what the rules would entail.
“The regulations as written are very confusing,” she said. “We’re trying to figure out exactly what the law requires.”
Q: What do the rules say?
A: After a fetus is aborted or miscarried, it is required to be buried or cremated, regardless of the stage of gestation, according to the Texas Department of State Health Services. The department recently clarified that if a miscarriage or abortion occurs at home, the rules don’t apply. This means that the rules will be implemented only if the miscarriage or abortion occurs at a hospital or abortion clinic.
Q: What makes these rules different from Texas’ previous standards for disposal of fetal remains?
A: The state allows for remains to be disposed of in a manner similar to medical waste. After the remains have been incinerated, grinded or disinfected, they can be sent to a sanitary landfill. The new rules require either cremation or burial. The state hasn’t said if it is up to the woman to determine whether the remains are buried or cremated. In a letter of concerns to the Department of State Health Services, officials from the Texas Medical Association and Texas Hospital Association said having that discussion with a woman who has had a miscarriage could be difficult.
Q: Who is paying for the burial and cremation?
A: When it comes to payment, “The onus is on the health care facilities to follow the rules,” Texas Health and Human Services Commission spokeswoman Carrie Williams said. But many facilities have expressed concern at the cost of complying with the rules, even though the health agency has said the cost shouldn’t be an issue. In their letter to the state health department, officials from the medical and hospital associations said cremation could cost between $1,500 and $4,000. They estimated the cost of a funeral, including services, burial and placement of headstone, would be between $7,000 and $10,000.
Q: Is a funeral required?
A: There is no a requirement that remains have to be disposed of through funeral homes, Williams said. The woman also doesn’t have to plan a burial or ceremony.
Q: Are death certificates required?
A: The new fetal remains rules don’t require death certificates, but other statutes in Texas law require certificates for fetal deaths past certain ages and weights. So if a death certificate has to be obtained, this isn’t a new procedure.
Death certificates are required only for fetuses that are going to be cremated and for fetuses that weigh above 350 grams or are at least 20 weeks, according to the Texas Health and Safety Code. The state’s defense is that death certificates are rarely needed since most fetuses weigh below 350 grams at the time of a miscarriage or abortion.
Q: Are fetuses granted “personhood” under the rules?
A: Not technically. Fetuses will have a legal requirement to be buried, like a person. However, that doesn’t mean the fetus has any other legal rights, such as the right to life.
Q: Do any other states have similar rules?
A: Georgia and Arkansas have similar fetal remains rules. Robert Brech, general counsel for the Arkansas Department of Health, said he didn’t think passing the rules was much of an issue in his state. He said representatives from the hospital association, as well as funeral home directors and other affected parties, were present during negotiations of their act. These parties were not directly involved in developing the Texas rules.
Louisiana and Indiana, which was under the governorship of Vice President-elect Mike Pence, approved fetal remains rules but could not enact them. The two states’ rules were blocked by lawsuits and court proceedings.