Fight over disposal of fetal remains will head to trial

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AUSTIN (KXAN) — The fight over whether or not Texas can implement the rule requiring hospitals and abortion clinics to bury or cremate fetal remains—rather than disposing of them in a sanitary landfill—will head to trial.

On Friday, U.S. District Judge Sam Sparks determined there was enough evidence presented by the Center for Reproductive Rights and Whole Woman’s Health to grant a preliminary injunction.

Earlier this month, Judge Sparks held a hearing to decide whether or not to grant the injunction. The rule, which was initially set to go into effect on Dec. 19, 2016, was challenged by the two groups stating the law serves no medical purpose. In his injunction, Sparks states the “DSHS admits the Amendments have no health benefits and the prior version of regulations governing tissue disposal induced no health problems.”

In the court documents, Sparks says “DSHS maintains the singular purpose of the Amendments is to promote respect for life and protect the dignity of the unborn while also claiming fetal issue is not human remains.”

During the hearing, a cost-benefit analysis expert found the rule has no benefits for health and public safety, yet comes with costs, estimating each cremation would be around $500 to $700. According to the injunction, there may be only one facility in the entire state of Texas both willing and currently able to handle disposal of fetal tissue as required by the rule. Sparks stated it would be reasonable to conclude that since there are not enough vendors to handle the task, it would “deliver a major, if not fatal, blow to healthcare providers performing abortions.”

Judge Sparks also questioned whether the new rule overrides existing state cremation laws. Texas law already allows scattering ashes on any private property, including landfills.

Attorney General Ken Paxton says he plans to appeal the court’s injunction. “These rules would simply prevent health care facilities from disposing of the remains of the unborn in sewers or landfills,” said Paxton in a statement. “Today’s ruling, however, reaffirms that the abortion lobby has grown so extreme that it will reject any and every regulation no matter how sensible. Indeed, no longer content with merely ending the life of the unborn, the radical left now objects to even the humane treatment of fetal remains. Texas stands committed to honoring the dignity of the unborn and my office is proud to continue fighting for these new rules.”

The founder and CEO of Whole Woman’s Health, Amy Hagstrom Miller, said, “We knew from the beginning when overzealous Texas politicians tried to put forward new medically unnecessary rules that would require all women who have an abortion or receive treatment for a miscarriage at any healthcare facility to have to bury or cremate embryonic tissue.”

Texas first proposed the rules in July, just after the U.S. Supreme Court voided many of the state’s larger restrictions on abortion.

Both parties have been ordered to submit a proposed scheduling order specifying the time period need to prepare discovery within the next 30 days. The court will then schedule a trial date.

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