Judge Strikes Down Texas Law Requiring Burial, Cremation of Aborted Babies as ‘Burden’ on ‘Right’ to Abortion

AUSTIN, Texas — A Hawaiian federal judge that was asked in 2013 to assist with the caseload in Texas by U.S. Supreme Court Chief Justice John Roberts has struck down a Texas law that would require preborn babies killed at abortion facilities to be buried or cremated instead of being discarded as medical waste.

Referring to the murdered unborn as only “potential life,” Judge David Ezra said in a 53-page ruling on Wednesday that the requirement would place a burden a woman’s “right” to an abortion.

“[T]he court finds the challenged laws impose significant burdens on women seeking an abortion or experiencing pregnancy loss (1) by requiring women’s healthcare facilities to use unreliable and nonviable waste disposal options and thus reducing access to abortion in Texas and (2) by enshrining one view of the status of and respect that should be given to embryonic and fetal tissue remains thereby burdening a woman’s abortion decision,” he wrote.

“At worst, 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,’” Ezra opined.

He said that the law made it difficult for abortion facilities to dispose of the aborted babies, which he referred to as “fetal tissue,” as an industry doesn’t exist that would serve to bury or scatter the ashes the children after their remains are prepared.

“Women’s healthcare facilities offering abortion and pregnancy-related care need to dispose of their accumulation of embryonic and fetal tissue regularly, weekly or every few weeks depending on the facility,” he outlined. “[I]f a healthcare facility uses either a funeral home or crematorium to treat waste, the healthcare facility must also transport its embryonic and fetal tissue remains to a disposition site such as a cemetery or location for scattering ashes.”

“The challenged laws permit funeral providers, licensed medical waste transporters, and healthcare providers themselves to transport the embryonic and fetal remains. But there is no evidence these transportation options have the capacity or ability to transport the remains from the many thousands of abortions and miscarriages occurring in Texas each year to treatment and final disposition,” Ezra asserted.

He said that because there would be difficulty being able to comply with the law, abortion facilities would have to close.

“Without a workable disposal system, healthcare providers cannot offer surgical care for miscarriages or abortions. Moreover, the challenged laws would likely trigger a shutdown of women’s healthcare providers unable to cobble together a patchwork of funeral homes, crematoriums, and cemeteries to meet their disposal needs,” Ezra explained. “Clinic closures would further constrain access to abortion in a state where access to abortion has already been dramatically curtailed.”

“In sum, the challenged laws meaningfully inhibit women’s access to pregnancy-related healthcare, especially abortion services, by requiring women’s healthcare providers to use unreliable and nonviable waste disposal options,” he concluded.

Ezra opined that the law consequently served as a “thinly veiled effort” to further reduce abortions in Texas.

Read the ruling in full here.

As previously reported, in Texas, abortion facilities customarily contract with third party medical waste companies to dispose of the aborted babies, which are usually classified as “pathological waste.” The containers of aborted babies, mixed in with boxes of bodily fluids, tissues and other items that are not permitted to be thrown in the trash, are then transported to an incineration plant where they are burned into ash and then dumped into landfills.

However, Texas law has also allowed for other types of disposal, including “grinding and discharging to a sanitary sewer system,” “chlorine disinfection/maceration followed by deposition in a sanitary landfill” or other “approved alternate treatment process, provided that the process renders the item as unrecognizable, followed by deposition in a sanitary landfill.”

In passing Senate Bill 8 last year, Texas legislators removed the provisions on grinding and disposition in landfills, and left abortion facilities with four options: “[A] health care facility in this state that provides health or medical care to a pregnant woman shall dispose of embryonic and fetal tissue remains that are passed or delivered at the facility by: (1) interment; (2) cremation; (3) incineration followed by interment; or (4) steam disinfection followed by interment.”

Read the bill in full here.

Gov. Greg Abbott signed the measure into law in June 2017, and the Center for Reproductive Rights, the Texas-based abortion chain Whole Woman’s Health, as well as other abortion facilities, consequently sued the State, asserting in an official statement that the regulations were “an insult to Texas women.”

Read the lawsuit in full here.

As previously reported, the medical waste company Stericycle was fined $42,000 in 2011 for autoclaving fetal remains from Whole Woman’s Health with household and commercial trash rather than incinerating them after a facility failed to mark the boxes for incineration.

“It was explained that medical waste is placed in red biohazard bags, then placed into boxes provided by Stericycle. Each fetus resulting from an abortion is placed into a hard plastic container and then into a red biohazard bag. The bag is then placed into a freezer, where it is stored,” the Texas Commission on Environmental Quality (TCEQ) investigative report read.

“When Stericycle arrives to transport the medical waste, the individual fetuses are removed from the freezer and placed into another large red biohazard bag. The red biohazard bag containing the fetuses is placed into the medical waste box along with other medical waste generated at the facility that requires treatment. According to facility representatives and the medical waste manifest reviewed, it appears that Stericycle picks up the waste once per week,” it outlined.

Whole Woman’s Health had filed suit in 2016 against a similar rule from the Texas Department of Health that would have required abortion facilities to arrange for the burial or cremation of aborted children, and a judge likewise granted an injunction. Legislators moved forward to present Senate Bill 8 despite the ruling, and Gov. Abbott signed the measure into law. It was set to go into effect in February, but was halted by an injunction.

Wednesday’s ruling marks a permanent injunction against the disposition law.

Attorney General Ken Paxton said in a statement that he believes the State will ultimately prevail as the legislation did not ban abortion in Texas, but only regulated how the babies are disposed of after their death.

“I remain confident the courts will ultimately uphold the Texas law, which honors the dignity of the unborn and prevents fetal remains from being treated as medical waste,” he remarked. “We established during a weeklong trial in July that the law is constitutional and does not impact the abortion procedure or the availability of abortion in Texas. My office will continue to fight to uphold the law, which requires the dignified treatment of fetal remains, rather than allow health care facilities to dispose of the remains in sewers or landfills.”

Ecclesiastes 11:5 teaches, “As thou knowest not what is the way of the Spirit, nor how the bones do grow in the womb of her that is with child, even so thou knowest not the works of God who maketh all.”

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