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After months of controversy, Texas will require aborted fetuses to be cremated or buried

Pro-choice supporters rally outside the Supreme Court before the June 2016 court ruling in a case that imposed heavy restrictions on abortion clinics in Texas and was struck down. (Michael Reynolds/European Pressphoto Agency)
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After months of fierce opposition from abortion rights advocates and the medical community, Texas will require fetal remains to be cremated or buried instead of disposed in sanitary landfills.

On Monday, health officials finalized the new rules prohibiting hospitals, abortion clinics and other health care facilities from disposing of fetal remains — regardless of the period of gestation. The rules will take effect Dec. 19, according to state health officials, the Texas Tribune reported.

Following criticism from medical providers, the state’s Health and Human Services Commission clarified that the requirement does not apply to miscarriages or abortions that take place at home. It also does not require birth or death certificates to be filed, to maintain confidentiality.

The move comes after months of public comment periods, hearings and more than 35,000 comments submitted to health officials since the rules were first proposed in early July. With little notice, Gov. Greg Abbott (R) approved the proposal, saying that he does not believe fetal remains should be “treated like medical waste and disposed of in landfills,” the Texas Tribune reported.

The health commission has said the rules will result in “enhanced protection of the health and safety of the public.” Meanwhile, reproductive rights activists say the rules are unnecessary and make it more difficult for a woman to get a safe, legal abortion in the state.

“The rules target physicians that provide abortions and the hospitals that care for patients,” said Blake Rocap, legislative counsel for advocacy group NARAL Pro-Choice Texas, the Dallas Morning News reported. “It’s so transparent that what they’re really trying to do is denying access to abortion.” The group rallied outside the Department of State Health Services in late October and delivered more than 5,500 signatures from individuals in opposition to the proposal.

Others in the medical and funeral industries criticized the costs that would be associated with cremating or burying fetal remains — a process that can cost hospitals and abortion providers several thousands dollars in each case. But department spokeswoman Carrie Williams said the cost shouldn’t be a concern.

“What we found through our research is that the proposed rules won’t increase total costs for healthcare facilities,” Williams said in an email, the Dallas Morning News reported. “While the methods described in the new rules may have a cost, that cost is expected to be offset by costs currently being spent by facilities on disposition for transportation, storage, incineration, steam disinfection and/or landfill disposal.”

Supreme Court rules against Texas and for science in abortion case

Abortion providers generally use third-party special waste services to dispose of fetal remains. Previous rules allowed fetal remains, along with other medical tissue, to be ground up and discharged into a sewer system, incinerated, or handled by some other approved process before being disposed of in a landfill.

David Brown, senior staff attorney for the Center for Reproductive Rights, on Monday said the rule was “an unnecessary burden and an intrusion” on a woman’s personal beliefs. “These new restrictions reveal the callous indifference that Texas politicians have toward women,” Brown said, the Texas Tribune reported.

Stephanie Toti, senior counsel for the center, said in a statement, “Texas politicians are at it again, inserting their personal beliefs into the health care decisions of Texas women.”

Meanwhile, several Republican lawmakers in the state have expressed support for the proposed rule.

“For far too long, Texas has allowed the most innocent among us to be thrown out with the daily waste,” state Sen. Don Huffines (R-Dallas) said in a packed public hearing on the proposed rule in August, the Austin American-Statesman reported. “Life begins at conception.”

Women who attended the hearing in August provided testimonials with mixed responses and personal details. One woman said she felt a great deal of closure burying a fetus after she had a miscarriage. Another 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.”

Some groups, like the Center for Reproductive Rights, have said they would likely challenge the new rules in court. Because the rules fall under the rulemaking authority of the state health department, they do not need legislative approval. But Republican lawmakers have already filed legislation to write the rules into statutory law when the legislature reconvenes in January, the Texas Tribune reported.

How restrictive are abortion regulations in your state?

Other states have passed restrictions on the use of fetal remains. South Dakota made it illegal to use aborted fetal tissue in research. In Idaho and Alabama it is illegal to buy, sell, donate or experiment on such remains.

A law in Indiana, among other things, also called for abortion providers to bury or cremate fetal tissue. Additionally, it would have prohibited abortions sought solely because a fetus had been potentially diagnosed with a disability such as Down syndrome. But in June, a federal judge suspended the law from going into effect, finding that it violated U.S. Supreme Court precedents protecting a woman’s right to choose an abortion and the right to privacy in making that decision, the Indianapolis Star reported.

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As Emma Green wrote in the Atlantic, legal guidelines for organ and tissue use are somewhat of a murky area. Tanya Marsh, a law professor at Wake Forest University, said, “The question of what we own of ourselves — what is the legal status of biological material that’s been removed from us — there’s very little law about that, except to say that it’s not ours.”

And for fetuses, such questions become even more complex, she added.

“That’s an area in between people born alive and a part of a person that had no capability of independent existence,” Marsh said. “These are deep philosophical, religious, and legal questions that we’ve punted.”

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