Federal Judge Buries Unconstitutional Texas Law on the Treatment of Fetal Remains

Our new vice president, Mike Pence, has taken to the media (social and otherwise) to declare his plan to stop taxpayer funding of abortions. Speaking to the 44^th annual “March for Life” at the end of his first week in the nation’s second highest office, Pence pledged in no uncertain terms that “[t]his administration will work with Congress to end taxpayer funding for abortion and abortion providers, and we will devote those resources to health care services for women across America.”

There are so many interesting things about this statement, among them that he pledges to “devote” the freed-up resources to women’s health care services, while simultaneously insisting that Congress repeal the Affordable Care Act, including the provision that guarantees women access to basic reproductive health care with no co-payments. That specific provision came about after an evidence-based study by the non-partisan Institute of Medicine concluded that those services are essential to women’s health and that even low costs are a significant barrier to access. So forgive me if I’m dubious about Vice President Pence’s concern for women’s health.

But there’s a bigger problem: there is no taxpayer funding for abortion or abortion providers. In fact, such funding has been banned since Congress passed the Hyde Amendment in 1977. That law, passed four years after the Supreme Court held in Roe v. Wade that women had a constitutional right to terminate a pregnancy up to a certain point without government interference, prevents Medicaid dollars from funding abortion except in the cases of rape, incest, or threat to the pregnant woman’s health. And some states ban funding even in those cases.

This lie Pence continues to perpetuate is part and parcel of the gaslighting strategy of the current Administration, whereby they perpetuate false information (lies, or, in Kellyanne Conway’s bizarro world, “alternative facts”) in order to confuse, manipulate, or make listeners start to question their own knowledge or understanding. Reproductive health for women has been a particular victim in this strategy—as both the president and vice president continuously lie about the current state of law and American policy on these controversial issues. They pledge to stop federally funded abortions, which don’t exist. They pledge to “defund” Planned Parenthood, which doesn’t receive federal funding, in order to stop taxpayer dollars from paying for the abortions performed at Planned Parenthood facilities. (Planned Parenthood receives money only when they provides services to women whose healthcare is covered by Medicaid because they are disabled or poor—just as they would receive money from any other health insurance system, private or public.) Only three percent of Planned Parenthood services involve abortion, and, let’s remember, these services cannot be paid for with federal dollars because of the aforementioned Hyde Amendment.

Do you know what taxpayers do pay for? They pay for the cost of passing unconstitutional laws and then defending them in court. Lawyers do not defend the government for free, and taxpayers foot the bill (as they do for the legislators’ time, too). As we’ve seen all over the country this past weekend, the nation is embroiled in a bitter fight to stop Trump from going forward with his blatantly unconstitutional ban on Muslim immigrants and refugees from certain countries (conveniently only those where his companies do not do business and coincidentally from which no fatal terror attack has originated). In a single night, five federal courts issued temporary stays, prohibiting the federal government from carrying out the Executive Order. They did that because of the likelihood that the ban will be deemed unconstitutional after a full hearing in the merits—but, by that time, irreparable harm will have been done to thousands of individuals. If Trump insists that the government defend this Executive Order, we are all paying for that effort. And this cost is high, especially given that when the government is in the wrong, they have to pay not only their own costs and fees, but the legal fees for the immigrant/detainee and, in some cases, damages. (HT to Lauris Wren for pointing this out.)

Texas Foots Bill to Defend Unconstitutional Abortion Law: HB2

In Texas, the taxpayers are paying to defend a never-ending barrage of abortion laws that are passed with the certain knowledge that they are unconstitutional. The last several years, the state spent millions defending HB2, a law that imposed unnecessary obstacles in front of women seeking to lawfully terminate a pregnancy. The law was a so-called TRAP law—targeted regulation of abortion providers—that started to emerge around the country in states with anti-abortion legislatures (not to be confused with anti-abortion voters because most of these laws were passed despite majority support for abortion access, even in Texas) as an end-run around the protections of Roe v. Wade and Planned Parenthood v. Casey. Those rulings combined held that women have a constitutional right to seek a pre-viability abortion without an undue burden imposed by the government.

The strategy was to chip away at Roe/Casey indirectly, by forcing abortion service providers to shut down. Dozens and dozens of abortion restrictions—92 in just the year 2011—made their way into state laws that made it practically more difficult for doctors to provide abortions, and for women to obtain them. The strategy was initially a great success—it drove abortion clinics out of business in droves. It left four states with only a single operating clinic. (A more detailed description of the abortion-specific rules and restrictions are explained and analyzed here.)

The Texas law included two requirements for abortion clinics that were challenged in court: abortion providers must have admitting privileges at a hospital within 30 miles of the clinic; and abortion clinics must be built and outfitted like ambulatory surgical centers. Texas defended these requirements on the grounds that it would protect the health of women who undergo abortions.

The Supreme Court struck down this Texas law. The 5-3 opinion in Whole Woman’s Health v. Hellerstedt, written by Justice Breyer, put an end not only to this specific law, but to an era in which state legislatures tried to undermine access to abortion without tackling it head on. According to the Court, the Texas law simply imposed too significant a burden on women’s access to abortion without any sufficient medical benefits to justify it.

The Court found two problems with Texas’s defense of the TRAP laws. First, there was no evidence in the record—a point conceded during oral argument—that a single woman had ever been helped by the requirements. In other words, the ostensible benefit did not exist (and, given the context in which these laws were passed, was most likely pretextual). Second, the laws substantially burdened women’s access to abortion because the requirements forced the closing of a significant number of the state’s abortion clinics.

The legislature that passed this law was counting on the fact that it would sound reasonable—at least until someone took a closer look at the facts. But the Supreme Court saw right through the safety mirage. In fact (remember when that saying had an obvious meaning), abortion is one of the safest medical procedures around and, to the extent special protections might be authorized, these aren’t the right ones. In fact, hospitals by and large do not grant admitting privileges to abortion providers either because they do not support abortion or because abortion providers do not admit a sufficient number of patients to the hospital (because abortions, as noted already, are so safe). In fact, outfitting abortion facilities like surgical centers offers no medical benefit and retrofitting is structurally or cost-wise prohibitive for most clinics. In fact, childbirth is fourteen times as likely to result in death as abortion, yet Texas licenses midwives to assist with childbirth in the patient’s home. In fact, Texas has the highest maternal mortality rate in the developed world. Let’s say it again: Texas has the highest maternal mortality rate in the developed world. On this record, the majority had no trouble concluding that Texas’s requirements “pose[] a substantial obstacle to women seeking abortions, and constitute[] an ‘undue burden’ on their constitutional right to do so.”

Defending Unconstitutional Texas Abortion Laws Redux: The Fetal Remains Law

Unfazed by the defeat in Whole Women’s Health, Texas enacted regulations requiring that fetal tissue must be buried or cremated, while all other types of biologic tissue can be disposed of in a variety of different sanitary ways. This new rule purportedly applies regardless of whether the pregnancy ends via abortion or miscarriage and regardless of the period of gestation. An embryo that has not progressed beyond eight cells must receive a proper burial. The cost is to be borne by hospitals and clinics rather than the women themselves, but that will raise the cost of healthcare.

These new regulations depart from a rule that has stood since 1989, which provides seven options for disposing of human tissue whether the result of “surgery, labor and delivery, autopsy, embalming, or a biopsy” or a “spontaneous or induced human abortion.” An amputated arm, an appendix, and an aborted embryo or fetus were subject to the same rules, with the overriding purpose to protect public health. There’s a gruesomeness to all these rules, but medical facilities need a method of disposal.

This is a blatantly unconstitutional law. It serves no medical purpose. The State of Texas conceded this point in the first stages of this litigation. It’s only purpose is to “promote respect for life and to protect the dignity of the unborn.” Toward that end, it singles out a particular act—termination of a pregnancy—and subjects it to special rules designed to make women who sought an abortion regret their act. (And just for good measure, it shames also women who suffer a life-threatening (and nonviable) ectopic pregnancy or a miscarriage.) It imposes costs that will ultimately be borne by all patients, as hospitals and clinics will have to raise fees to cover their cost—although no adequate research was done before the regulations were enacted. The Catholic Church has offered to bury fetuses for free in its cemeteries, but that only highlights a separate defect in the law, that it imposes a religious ritual on individuals who may or may not share the state’s beliefs.

In a recent ruling, confusingly also captioned Whole Women’s Health v. Hellerstedt, a federal judge named Sam Sparks, who was appointed to the bench by President George H.W. Bush, issued an order enjoining the State of Texas from implementing the fetal remains rule until a full trial on the validity of the law. He determined, as per the rules of preliminary injunctions, that the plaintiffs have a strong likelihood of success on the merits. The ruling discusses the strong possibility that the law will be found unconstitutionally vague—even the state health department who promulgated the regulations could not decide its meaning—leading to the possibility of arbitrary and discriminatory enforcement. The state’s counsel, for example, admitted he did not know what the phrase “other tissue from a pregnancy,” language from the regulation, might include. How are women or doctors supposed to know whether the special disposal rules apply or not? (I can’t help but flash back to the Amy Schumer skit about the all-male health care committee in Congress taking over her annual gynecological exam, or, in a case of life imitating art, the image of Trump and his all-male advisory team hunching over to set back women’s reproductive health twenty years by reinstating the Global Gag rule.)

Moreover, and probably more importantly, the judge concluded that the plaintiffs were also likely to succeed in their claim that the law violated the Fourteenth Amendment’s Due Process Clause, which has been interpreted to protect a woman’s right to abortion without undue burden. The State of Texas admitted that the only purpose of the new rules is to promote the dignity of human life. But Texas law does not, and cannot not under federal constitutional principles, define life to begin at conception. The state has a legitimate interest in protecting potential life, but before a certain point in pregnancy, that interest is not strong enough to outweigh the mother’s choice whether to terminate the pregnancy or carry it to term. Moreover, the judge noted, the law applies at a point when there is no potential for life—after an abortion or a miscarriage has taken place, or after an ectopic pregnancy (which could never lead to human life) has been surgically removed. Judge Sparks also found evidence of pretext, as the regulations were introduced just a few days after Texas’s TRAP laws were slapped down by the U.S. Supreme Court. (He also found it odd that a law designed solely to protect the dignity of the unborn suggested that providers should bottle up fetal remains, multiple sets in each bottle, and save them until the litigation is over and a humane burial is mandated.)

In the end, Judge Sparks concludes that Texas’s state interest in “protecting the dignity of the unborn” is not a legitimate state interest. And, even if it is, the state has imposed an undue burden on women who choose to exercise the right to terminate a pregnancy. The burdens clearly outweigh the benefits, he concluded. There was no evidence, for example, that there were sufficient vendors to process the fetal tissue. He was not impressed by the state’s suggestion that a single vendor in a state that covers 280,000 square miles could dispose of all fetal remains. Nor that clinics forced to close while litigation is pending—because they can’t meet the disposal requirements—would reopen. The lesson of the first Whole Women’s Health litigation is directly to the contrary. Women would be less likely or less able to seek an abortion if these rules were allowed to take effect. And that, in the end, is what makes the law unconstitutional.

This is undoubtedly the right approach, given the very high likelihood that the law will not survive a trial on the merits. So the question remains: Why are taxpayers funding the frolics and detours of legislators and executive branch officers whose beliefs neither conform to binding federal constitutional norms nor to the beliefs of their constituents? Now that is a real funding problem to worry about.