Reproductive Rights

Texas Approves Rule Requiring Fetal Burial After Abortion

The Texas Department of Health and Human Services has approved new rules this week requiring clinics and doctors to bury or cremate fetal remains following an abortion, instead of disposing of the contents of the procedure like all other forms of biomedical waste.

The department claims that the new rules, set to go into effect on December 19, will not apply to women who miscarry, and that a certificate of birth or death will not be required. While the rules fall under the discretion of the health department, and do not need to be approved by the legislature, Republican lawmakers have already made clear their intention to write the rules into law when they reconvene in January.

Medical professionals and abortion rights groups have condemned the new rules as constituting an undue burden on women seeking abortion, as they offer no improvement to public health and could significantly increase the costs associated with abortion by several thousand dollars.

During the department’s testimony hearings this summer, a rape survivor who had sought an abortion described that if she had been forced to comply with the new fetal burial rules, it would have “essentially been the state of Texas rubbing my face in my own rape.”

The fetal burial rules were proposed in the aftermath of the Supreme Court’s June decision in Whole Woman’s Health v. Hellerstedt, when the Court declared 5-3 that Texas’ 2011 HB 2 law, requiring clinics offering abortion services to comply with ambulatory surgical center standards, as well as mandating that doctors performing abortions have admitting privileges at local hospitals, constituted an undue burden on abortion access and, was thus, unconstitutional. The Court reached this conclusion after the Texas government could not prove that the law had any medical benefits. By that time over half the abortion clinics in Texas had been forced to close.

A draft of the Texas Department of State Health Services new pamphlet that doctors are required to give to all women seeking to terminate a pregnancy highlights the states prioritizing of an anti-abortion agenda over women’s medical, emotional and economic well-being. Preliminary findings showed that 34 percent of the information in the pamphlet was medically inaccurate. In highlighting death as the most prominent health risk, the pamphlet fails to detail that only five Texas women who had an abortion between 2001 and 2014 died from complications, as opposed to the more than 1,000 Texas women who died from pregnancy-related causes during the same period.

In fact, a report released in August found that Texas’ maternal mortality rates almost doubled between 2010 and 2012, a spike the report called difficult to explain “in the absence of war, natural disaster, or severe economic upheaval.” The data coincides with a 66 percent cut in family planning funds in 2011, and the closure of 82 clinics since that year certainly did not help the public health crisis.

Indiana and Louisiana also passed mandatory fetal burial regulations this year, though both have yet to be implemented due to legal challenges filed by women’s health advocates. South Dakota, Idaho and Alabama have made it illegal to conduct research on aborted fetal tissue remains.


New York Times 11/30/16; Washington Post 11/29/16; Feminist Majority Foundation 6/27/16, 8/23/16, 8/1/16.

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