Defending a Texas Rule Requiring Fetal Burial or Cremation

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Posted in: Reproductive Law

In Texas, U.S. District Judge Sam Sparks recently issued a temporary restraining order blocking a set of regulations that were scheduled to go into effect December 19. The regulations, if they ultimately go into effect after a more thorough consideration, will require hospitals and clinics to bury or cremate the remains of embryos and fetuses resulting from the end of a pregnancy occurring at their facilities (whether by termination or miscarriage). The Center for Reproductive Rights and other abortion rights groups brought a lawsuit challenging the regulations on the ground that they serve no medical purpose and are meant to shame women who have abortions and stigmatize the practice of abortion. Defenders of the rules say that they express an attitude of respect toward the life that is lost in an abortion or miscarriage, an attitude that can be a permissible component of regulations under existing precedents. In this column, as an exercise, I will attempt to make the case for the regulations, despite my own doubts about their legitimacy. Although I am generally pro-choice, I will speak in the voice of a pro-life activist, for purposes of this column.

Abortion Ends a Valuable Life

In finding that women have the right to terminate a pregnancy, the Supreme Court has been careful not to say that the growing baby inside the woman is worthless or entitled to no consideration. On the contrary, the Court has said that regulations intended to persuade a woman to keep her baby are lawful and legitimate, so long as they do not impose an “undue burden” on her ultimate ability to choose to terminate. In the Court’s words, “[u]nless it has that effect on her right of choice [creating a substantial obstacle], a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal.”

This is why, in Planned Parenthood v. Casey itself, the decision embracing the “central holding” of Roe v. Wade, the Court upheld all but one of the regulations under consideration. Requiring a parent’s consent for a minor’s abortion (with a judicial bypass option), requiring that women receive comparative information about abortion and childbirth as well as the fetus’s probable gestational age, and requiring women to observe a 24-hour waiting period after the informed consent session before undergoing an abortion, are all lawful under Casey. In connection with the informed consent requirement, the Court said that “we permit a State to further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when, in so doing, the State expresses a preference for childbirth over abortion.” This preference—for childbirth over abortion—is accordingly one that governments are authorized by the Supreme Court to express in regulations, so long as those regulations do not unduly burden the woman’s ultimate decision.

To state all of this in a slightly different way, the Court has welcomed legislation and regulations that reflect pro-life sentiments if such legislation and regulations are not unduly burdensome.

Opponents of the burial/cremation legislation argue that having to bury or cremate the remains of a fetus or embryo serves no medical purpose and that the requirement is intended to shame women and to stigmatize abortion. I, as a supporter of the rule, strongly disagree with this characterization.

First, a requirement that Texans bury or cremate a born child who dies arguably serves no greater medical purpose than the requirement that they bury an unborn child. One could dispose of all human remains in landfill in ways that would not pose a health hazard to anyone. But we do not do that because such actions would show disrespect for the lives of the people whose remains are at issue, even when those people are small infants who could easily be thrown away as medical waste. Human beings are, in other words, not medical waste; they are sacred and must be treated with reverence, in life and in death.

The purpose, then, need not be medical so long as it is not incompatible with medical need. And burial and cremation requirements are consistent with medical need: we bury or cremate remains in a manner that protects the public health just as we would dispose of remains in landfill in a manner that protects the public health. The difference is in the attitude reflected by the conduct. And it is permissible to have our actions reflect an attitude of reverence rather than representing a view of the fetus or embryo as garbage to be disposed of in the same way as an extracted tumor.

Second, the burial or cremation of a fetus or embryo does not aim to shame women. I and others in the pro-life movement understand that women who terminate their pregnancies are victims of the abortion industry just as their unborn babies are victims. Women experiencing a difficult pregnancy often feel desperate and unable to cope. I do not judge such women. This is why I and fellow pro-life advocates aim ultimately to criminalize the conduct of providers rather than of the women who terminate their pregnancies under the false impression that this will better their lives.

I do not wish for women who terminate to feel ashamed. 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. That perspective is well captured by a burial or cremation requirement, which alerts the woman to the reality (which she may already know in her heart) that someone living has now died and should be laid to rest like other members of our community who die. Insofar as this perspective stigmatizes abortion, it does so by expressing the view that an unborn child has a life worth living and therefore should not be killed.

Stigmatizing the killing of living beings is consistent with the permission the Court has granted government to express a preference for childbirth over abortion. And the women themselves do not have to bury or cremate their unborn children. The regulations expressly exempt women who have miscarriages or abortions at home from having to comply with its requirements, stating that “[t]hese sections [requiring burial or cremation of fetal tissue] do not apply to …. Human tissue, including fetal tissue, that is expelled or removed from the human body once the person is outside of a healthcare facility.”

It is the hospital or clinic that has to provide for burying or cremating the remains of the child that died before ever being born. And this includes the bodies of unborn children whose death results from miscarriage rather than abortion. The fact that miscarriages are included highlights the goal of the rule, which is to demonstrate respect for life rather than to harm women who have an abortion. Abortions are only one source of the fetal tissue that is ultimately subject to the rule.

No Burden on the Right to Terminate Pregnancy

It is unclear to me how a burial or cremation requirement unduly burdens or even burdens at all the right of women to terminate their pregnancies. The women don’t have to do anything. They will simply know about the burials and cremations, and that knowledge will—if the rule succeeds in its aims—sensitize them to the value of the life that lived within them for a period of time.

It is the provider who has to bury or cremate the remains. Opponents of the rule claim that providers will pass along the cost of the burials and cremations to their customers, but supporters of the rule cannot be held responsible for that passing along of the burden. Also, presumably, even if they do not pay at least part of the cost themselves, providers could spread the cost of complying with the rule across all of their patients so that women having abortions or experiencing miscarriages do not have to foot the entire bill. I also do not expect that compliance will be expensive, though I understand that there are divergent assessments of the cost. Notably, the Texas Catholic Conference has announced plans to allow free fetal burial at Catholic cemeteries, a move that would eliminate the financial burden that might have resulted from the regulations.

Given both the possibility of spreading the cost across patients (or perhaps insuring for it) and the generous offer of the Texas Catholic Conference to allow free fetal burial, I cannot see how a burial/cremation requirement will unduly burden the choice of women to terminate a pregnancy. It might conceivably deter abortion through persuasion rather than coercion, if women stop and think about the meaning of burial and cremation, of the life that lives within them, in a way that they may not have thought about it before. As a persuasive measure, then, the requirement operates very much like a waiting period that gives women the opportunity to really think about what they are planning to do.

In short, the rule requiring that the bodies of unborn children resulting from abortions and miscarriages taking place at a hospital or clinic be buried or cremated is consistent with the Supreme Court’s rulings on a woman’s right to terminate a pregnancy. Though it may not serve a medical purpose, it also does not contravene any medical purpose. And it is not pointless (in the way that perhaps Texas’s admitting privileges and ambulatory surgical center requirements were pointless), because it emphasizes the value of the life that is lost in an abortion or a miscarriage, an emphasis that is permissible under existing precedents. Most importantly, the rule does not aim to make women feel ashamed of having an abortion. The goal instead is to bring enlightenment to women, if not before then after an abortion or miscarriage, so that women come to understand what they perhaps knew deep inside all along: that an unborn child is a valuable living being who deserves respect and reverence, in life and in death.

* * *

Let me return now, briefly, to my own persona rather than the pro-life voice in which I have written this column. I wish to remind the reader here that I am pro-choice and that I have serious reservations about the burial and cremation requirements discussed here. I have set forth some of those reservations in an accompanying blog post. Despite my own views, however, I consider it a valuable and potentially humbling exercise to try to see the world through others’ eyes, to avoid becoming blind to the arguments on the other side of one’s position.

Posted in: Reproductive Law

Tags: Abortion, Legal, Texas

  • Mark Huffman

    I am very impressed and grateful for Prof. Colb’s efforts here. Doing this sort of thing is probably really hard but if we are to work through these seemingly intransigent issues, it will require this sort of effort on all sides.

  • doug

    In addition to improperly ascribing personhood on an unborn fetus, this law has the additional negative effect of depriving the medical community of a fetus for scientific study. It is undeniably the codification of moral shaming, and effrontery to real scientific need.

    • Catherine Comella

      I completely agree. It’s not like the “abort-er” needs anymore shame, humiliation or guilt. I wonder how their daughters, wives, sisters and female friends feel about the situation. Stop cramming your religious beliefs down the rest of the country’s throat. I leaned that God (whomever’s God) was all forgiving..is public shaming and humiliation the act of a “good” Christian. Leave people alone, live and let live, if we spent as much time trying to be compassionate to our fellow humans instead of tearing them down, the World would be a much nicer place.

    • FatherMapple

      Could you please show the authority you’re using to say ascribing personhood to an unborn fetus is any more improper than ascribing personhood to a severe Alzheimer’s patient, who is also unable to communicate or sustain their own life? Why shouldn’t we allow medical studies to happen on people with reduced capabilities or an inability to live on their own, like elderly people who are incapacitated, except for, undeniably, the codification of moral shaming by other potential Alzheimer’s patients? I mean, we were all unborn fetuses once, so just potential for life in the past or future doesn’t play into your equation at all, correct?

      I would be very interested to hear your reply.

      • groovy joker

        Father, personhood aside, as legally a corporation is a person, so really let us move away from this weakly defined term….this is about whether there is an undue burden on women. This and many other laws do. If the state wants to take the fetal remains, bury them and have whatever Christian based ceremony – all at the expense of the state, that’s one matter. Do not impose religious based ceremonies on women who may have different beliefs or even be atheist. This is an undue burden. And, do not impose the cost of the new regulations upon the women. Again, any additional time, money, effort or stress on their part is an undue burden. Women do not want to have abortions. They do not seek them out as birth control. Only uneducated idiots believe this. We need to help reduce abortions by making family planning easier, more welcoming, ensuring women don’t get to the point of needing an abortion, and if they do have to go through this traumatic experience, we will hold their hand.

        • FatherMapple

          “personhood aside, as legally a corporation is a person,”

          That is one way to avoid the question and go onto another strawman of undue burdens. But your comment about undue burdens assumes women have rights other people do not have. You need an authority for that. Because some fetuses have DNA substantially similar as women. What is a pregnant woman is in a coma? Does she have rights?

          This has nothing to do with religion specifically (apart from, the idea of who are people is influenced by many religious worldviews). It has everything to do with you giving an argument on why one person’s rights should be respected over another, or one person’s rights should be recognized at all. People following something like your logic would allow us to donate mentally incompetent people to science, while still living. Functionally, they’re as burdensome on society (which includes women) as a fetus. Whole industries are there to support them.

          You need to give a reason for people to take your logic. Otherwise, your slope is too slippery to recognize humans as what they are.

        • FatherMapple

          “We need to help reduce abortions by making family planning easier, more welcoming, ensuring women don’t get to the point of needing an abortion, and if they do have to go through this traumatic experience, we will hold their hand. ”

          I agree! Allow a removal of something that passes away inside the woman, just as we would for an appendix or gallbladder. But we don’t allow those invasive procedures to be done electively. It is literally against the law in every state.

          Wouldn’t this just include letting them give birth? Come on now. Medically invasive procedure for post 16 weeks pregnant, right? It’s just a cesarean or an abortion? Passing a dead fetus, or vaginal birth? Shouldn’t all this be overseen by trained medical people in a first world country, rather than sending people home to miscarry on their own?

          You need to think through your presuppositions. Then you’ll find there’s much less holding them up than you believe.

      • doug

        One is born, detached from his/her mother’s womb. The other is completely dependent on his/her mother to breathe. Read the Roe decision: the balancing act between an adult woman’s control over her body, and the rights of a completely dependent fetus are not taken lightly. The whole decision tries to tread lightly on this balance.

        If a state closes nearly every clinic, it runs afoul of the Roe decision, and the law is struck down. The court has found abortion a legally protected privacy right. 4 months before election, Trump said the issue was “settled.” If states want to f around and make things difficult, their law will be struck down by the Court. If you change the court to discard 30 years of legal precedent, you will (literally) have blood on the streets here.

    • C Jay Robbins

      I would be interested to hear the thoughts of a pathologist or other medical professional. Apart from the obvious profound moral implications of using aborted fetuses for scientific research, is there any medical need for doing so? Medicine, not polemics, please.

  • galt1208

    I have no doubt regarding Ms. Colb’s intelligence or knowledge of the law, I do question her honesty. She, just as all of us is subject to self confirmation of our ideas and beliefs. That is, we tend to accept more readily those propositions which confirm our already developed beliefs. In so doing, for example, she begs the core question: when does life begin? Obviously she “believes” that life begins when she says so. It is equally obvious that she and those of her ilk have enrobed themselves in the mystical majesty of another undefined term: “pro-life.” Neither she nor the rest of her adherents say anything about “life”, just anti-choice. How can we make it more burdensome and more onerous upon both women and providers of abortions to let the woman choose? Requiring cremation or burial is an unnecessary burden upon both women and providers. Either or both require money. Since many abortions are performed at the request of poor persons, the provider would be required to pay for the “last rites”
    I have yet to see one self-proclaimed “pro-life” person protest conservative decisions to make it more difficult or expensive to provide health care for children, or good education, or good homes, clothing and food. If you are truly “pro-life” why aren’t you lobbying equally for a public requirement to provide these necessities for children? It seems as though the so-called “pro-lifers” think life begins at some undefined (undefinable?) time after sexual intercourse and ends at birth.
    Being old enough to remember the days before Roe vs. Wade, I also remember wives and daughters of the wealth getting safe abortions when desired, and the less well off getting coat hanger abortions which often resulted in injuries, some leading to death of the woman. Are those really the “good old days” to which you wish to resurrect? Every piece of legislation which makes it more expensive, more difficult to obtain an abortion punishes the poor (again) disproportionately.
    I will praise your article as being well written and well thought out (to a tragically limited degree), but I must also point out that, overall, it is laden with value judgments which are cruel, pointless and aimed at those most in need. You have made your smug elitism publicly known.