Starting December 19, Texas women who suffer miscarriages will have a big decision to make: how they'll bury the fetus.
A new rule from the state’s health department is requiring women to bury or cremate miscarried or aborted fetuses no matter how far along in gestation they are. Tissue from miscarried or aborted fetuses can no longer be disposed of along with other medical tissue and waste, and must instead be treated as a deceased human.
The so-called “fetus funeral” regulation, copied from recently enacted (but currently legally challenged laws) in Indiana and Louisiana, was written under a directive by Texas’s anti-abortion rights Gov. Greg Abbott, who, after the rule was ratified, sent out a fundraising letter saying it was a step in preserving human dignity. Abortion rights advocates, however, argue this rule and ones like them are another way to bar access and shame women who seek abortions.
According to the rule, tissue from fetuses that are no longer viable, either through spontaneous or induced abortion, must be cremated, entombed, buried or undergo "placement in a niche or by using the process of cremation followed by placement of the ashes in a niche, grave or scattering of ashes as authorized by law,” the New York Times reported.
The new rule is being imposed by the Department of State Health Services, whose members were appointed by Gov. Abbott. Lawmakers, reproductive rights activists, and the Texas Medical Association and the Texas Hospital Association objected to the requirement. In a letter sent out last month to the health department, the hospital association wrote “these rules once again will present regulatory intrusion” into the "unique relationship” between doctors and patients.
After a different version of the rule was quietly proposed in July—just after the Supreme Court struck down parts of a Texas law that would have forced a significant number of abortion clinics in the state's rural areas to shut down— medical groups also raised concerns about the burden it would place on women who, after a miscarriage outside a medical facility, would have to transport tissue to a hospital in order to dispose of it in compliance with the rule, which spurred a revision.
“We made certain changes to the rules along the way, including adding language to make clear that these rules don’t apply to miscarriages or abortions that occur at home, and adding language to clarify that birth or death certificate issuance is not required for proper disposition under the rules,” the health department's spokesperson Carrie Williams told the New York Times.
Healthcare advocates argued at hearings over the summer that the new rule does not benefit the health of Texas women, nor does it improve on safe medical practices, which is the aim of health department regulations and actions.
Heather Busby, the executive director of NARAL Pro-Choice Texas, an abortion rights group, criticized “the addition of non-medical ritual” to a medical procedure and called the new rules “a thinly veiled attempt to shame Texans who have abortions and make it harder for the doctors who provide them.”
“The state agency has once again ignored the concerns of the medical community and thousands of Texans by playing politics with people’s private health care decisions,” Busby told the New York Times, adding that the Texas Department of State Health Services "has failed to show any evidence this rule benefits public health or improves the safe practice of modern medicine.”
The department held two hearings for public comments about the new rule, and women provided mixed testimonials about the regulation. The Washington Post reported one woman said she felt closure after burying a miscarried fetus. Another speaker said she "had an abortion after she was raped, and that if she had been forced to bury the fetus it would have 'essentially been the state of Texas rubbing my face in my own rape.'"
Abbott has already used the new rule for political fundraising email sent to supporters today, the Texas Tribune reported. He wrote that Texas is working to “turn the tides” against the abortion industry in the state and protect the “rights of the unborn.”
“I believe it is imperative to establish higher standards that reflect our respect for the sanctity of life,” the Tribune quoted from Abbott's email. “This is why Texas will require clinics and hospitals to bury or cremate human and fetal remains. “I don’t believe human and fetal remains should be treated like medical waste and disposed of in landfills."
Democratic lawmakers questioned the rules and why they're being enacted by the health department. As such, they do not require approval by the state legislature. And when the Supreme Court struck down the state's restrictive laws (which has resulted in an increase in Medicaid-funded births in Texas), they said medically unnecessary restrictions to abortion access are unconstitutional.
Indiana and Louisiana have similar regulations, which are not yet in practice because they're currently being legally challenged. In Indiana, Vice President-Elect Mike Pence, governor of the state, is the one who signed the regulation into law there.