Here's what you need to know about Texas's gruesome fetal burial law

Abby Haglage
(Photo: Getty Images)
(Photo: Getty Images)

A bill requiring Texas health care providers to either bury or cremate fetal remains was halted this week by a federal judge, marking the second failed attempt by anti-abortion activists to enact it.

The controversial provision was added to Senate Bill 8 last year, after being struck down in 2016 by a judge in Austin, Texas. When the new version passed in September, anti-abortion activists were thrilled. Texas Right to Life, a non-profit crusader against abortion, reportedly called it the “most significant pro-life victory” in the entire legislative session.

Set to take effect February 1st, the law’s enforcement was blocked in the final days by U.S. District Court Judge David Ezra, who said its “burdens appear to outweigh its benefits.”

Ezra was responding to a lawsuit brought by the Center for Reproductive Rights (CRR), on behalf of several Texas medical providers, challenging the constitutionality of the legislation. One of their main points of contention was that the measure would force even women undergoing a miscarriage or ectopic pregnancy to endure a “burial” of their non-viable fetus.

The bill doesn’t mince words, describing the “disposition of the unborn child’s remains” in detail, including a description of “incineration” as “the process of burning remains in an incinerator.” It outlines an exact form that women would be given at their appointment, which would explain in excruciating detail the means by which their fetal remains would be buried or cremated. It adds that women would need to sign a statement agreeing to be responsible for burial or cremation costs.

The law, although extreme, isn’t necessarily unique. Anti-abortion activists have pushed for similar legislation in at least three other states — Indiana, Arkansas, and Louisiana — all of which are currently being blocked by judges.

Supporters of the bill refute the concept that it’s a move aimed at dissuading women from getting abortions. “I do not wish for women who terminate to feel ashamed,” writes Sherry F. Colb, a professor of law at Cornell University, on the legal analysis site Verdict. “I wish for them to feel regretful, or at least to understand that there is a perspective on their conduct that says it is regrettable.”

Opponents of the bill say the opposite — that it’s a direct attempt to discourage women from terminating pregnancies, or to punish those who do.

News that the Texas law had been blocked was met with celebration from CRR. “Today’s ruling reaffirms that the courts will enforce the law and block burdensome restrictions on health care providers and the women they serve,” said Nancy Northup, President and CEO of the Center for Reproductive Rights.

Amy Hagstrom Miller, who heads up Whole Woman’s Health (one of the lead plaintiffs,) echoed her thoughts in a statement to CRR. “The legislature’s relentless attacks on access to reproductive health care prevent women from getting the care that they need. These attacks continue to be dangerous and wrong,” said Miller. “Today’s decision is a strong affirmation of what we have always fought for — that women deserve to have the dignity when making health care decisions.”

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