Judge asks if Texas fetal remains rules override current law

AP News
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Posted: Jan 04, 2017 5:53 PM

AUSTIN, Texas (AP) — A federal judge appears to be casting doubt on the legality of hotly debated Texas rules requiring burial or cremation of fetal remains, questioning Wednesday whether they would override separate, existing state laws on scattering ashes.

Health department regulations in the country's second-largest state are seeking to protect "human dignity" by banning the disposal of remains from abortions and miscarriages as biological medical waste — usually meaning they are incinerated and deposed of in sanitary landfills. National advocacy groups who sued to stop the rules contend they don't provide any public health benefits and instead seek to shame women who undergo abortions and make it tougher for doctors to perform them.

The rules would have taken effect last month, but U.S. District Judge Sam Sparks put them on hold while he considers the lawsuit. Sparks is hearing evidence before making a more-binding decision. Federal courts already blocked similar measures in Louisiana and Indiana.

Sparks has suggested the rules could supersede established Texas law that allows scattering of ashes on any private property with owner's consent, which could include landfills. Texas Attorney General Ken Paxton's office says that law applies only to human remains and not specifically to fetal tissue — a distinction that Sparks pressed state lawyers on Wednesday during a hearing in Austin.

"Fetal tissue is not human remains for the purposes of this statute," John Langley, an assistant Texas attorney general, told the judge.

"It's the official doctrine of the state that fetal tissue is not human remains," Sparks responded. "So you're bringing dignity to non-human remains?"

It's a potentially important point because the Texas health department says the rules are meant to "protect the public by preventing the spread of disease while also preserving the dignity of the unborn in a manner consistent with Texas laws." Texas has some of the nation's toughest anti-abortion measures, as evidenced by last summer's U.S. Supreme Court ruling striking down much of a 2013 law that would have left Texas with 10 abortion clinics, down from more than 40 in 2012.

As arguments concluded Wednesday, Sparks said he agreed that there were no medical reasons for the proposed rules change, saying it "does not have any benefit at all to health."

"This is purely 100 percent political. I've heard no evidence otherwise," the judge said. He later added: "I think all life needs dignity, but that's not the point."

In response, Langley said comparing past Texas law on scattering ashes to handling fetal remains was "apples and oranges. The older statutes deal with bodies that were born and lived and died."

"It's not an easy fix and I acknowledge that," Langley said of the new rules, describing them as Texas' "attempt to make the best" out of a thorny policy situation.

Even as the legal fight over the rules rages, top Republican state lawmakers have pre-filed bills to codify them into formal Texas law after the Legislature reconvenes next week.

The groups suing say cremation, and especially burial, would cost more and force women to cover the additional expenses. Exactly how much more isn't clear, though some estimates have put the figure at an extra $400 per fetus — perhaps doubling the existing costs of abortion.

The state argues that those estimates assume individualized burial or cremation being required for each fetus when the rules would instead allow groups of remains to be collected for mass burial or cremation, thus lowering the cost considerably. Jay Carnes, who operates the state's largest-volume crematorium, testified that 25 sets of fetal remains could be transported and cremated together for around $350, or roughly $14 per case.

But Sparks was unmoved by either estimate saying: "We have absolutely no idea how it's going to affect the cost."

The judge had hoped to issue a written decision this week, but said a full court schedule means it likely won't be ready until the week of Jan. 23 — and he extended his original restraining order until then.