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Federal Judge Voids Texas' Fetal Burial Law

By Lisa M. Schaffer, Esq. on September 11, 2018 | Last updated on March 21, 2019

There's a side of abortions and miscarriages that is often forgotten: the body of the fetus.

In February 2017, a Texas law went into effect that required health care providers to bury or cremate fetuses, regardless of a patient's wishes or religious beliefs. That law had been put on hold after local abortion clinics filed for, and received, a temporary injunction in federal court.

Last week, Judge David A. Ezra declared that injunction permanent, stating the law violated the 14th amendment, since it required healthcare facilities to use "unreliable and nonviable" waste disposal methods that would restrict abortion access. He also found that the law interfered with a woman's decision to have an abortion by "enshrining one view of the status of and respect that should be given to embryonic and fetal tissue remains."

Is a Fetus Anything More Than Pathological Waste?

Prior to 2017, fetuses were disposed of as pathological waste, similar to any other tissue. This included grinding and discharging into a sewer system, incineration, and placement in a landfill. Many abortions are performed at low-cost pregnancy clinics, and requiring them to cremate or bury the fetus would present a cost that may have been insurmountable to many.

Though all tissue had been disposed of in a standard manner without creating a biohazard, the legislature wanted to use the fetal tissue to make abortions more difficult to administer or obtain. Judge Ezra believed that Texas simply doesn't have the infrastructure to handle fetal tissue in that manner. He declared that due to the lack of facilities and the additional processing, the law would increase costs to the point of making abortions almost unviable for people of all socio-economic levels.

The 14th Amendment

The judge also ruled that having to cremate or bury the fetus was interfering with a woman's right to choose. Forcing women to have to bury or cremate tissue that they did not believe to be a human being was another violation of the 14th Amendment. In balancing the costs and benefits or the requirement, the judge said, "the challenged laws intrude into the realm of constitutional protection afforded to 'personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it.'"

Texas has become a hotbed for abortion rights over the last few years, and the war will undoubtedly continue. The state has 30 days to appeal the judge's ruling, which would send the case to the 5th Circuit Court of Appeals in New Orleans.

If you feel like your constitutional rights have been violated upon seeking an abortion, contact a local civil rights attorney, who can listen to the details of your case, and inform you of your legal rights and potential next steps.

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