As the nation sits gripped to the television, radio, computer, and newspaper while the US Senate considers whether to confirm Judge Brett Kavanaugh to the Supreme Court—a decision that may determine whether Roe v. Wade gets overturned or gutted—judges around the country continue to sit in judgment of a seemingly endless barrage of abortion restrictions that state legislatures continue to pass.
In Texas, the legislature can’t take “no” for an answer. Despite having significant restrictions invalidated by the US Supreme Court in 2016, the legislature went right back to the anti-abortion drawing board to pass a new set of restrictions. Among those was a law requiring that embryonic and fetal remains, following abortion or miscarriage, be given a “proper” burial. The new rules were rolled out first as regulations from the Texas State Department of State Health Services (DSHS). Those regulations were challenged, and, after an evidentiary hearing, a federal judge, Republican-appointed Sam Sparks, issued a preliminary injunction to prevent their enforcement, on the grounds that the rules were likely to be deemed unconstitutional and that allowing them to be enforced in the meantime would cause irreparable harm.
Five months after Judge Sparks issued the preliminary injunction, the state legislature doubled down and passed a bill elevating the unenforceable rules to state law. That bill also included a ban on the most common type of second-trimester abortion, a ban that has already been invalidated by a federal judge in an entirely different lawsuit. (That provision, and the ruling that invalidated it, Whole Woman’s Health v. Paxton, is discussed here.)
After a series of technical litigation developments, a different judge conducted a full trial on the merits to determine whether the new law that governs the disposal of embryonic and fetal remains is constitutional. That judge, David Alan Ezra, appointed to the federal bench in 1987 by President Ronald Reagan, concluded that the fetal remains rule imposes an undue burden on women seeking to exercise their constitutional right to terminate a pregnancy and issued an order permanently preventing enforcement of the burial requirement. The opinion is based largely on the Supreme Court’s last cut-it-out message to Texas, but these messages continue to fall on deaf ears.
The Embryonic and Fetal Remains Law
As described above, the new requirements governing embryonic and fetal remains were rolled out first as agency regulations and then as state laws. Since 1989, Texas law has provided that embryonic and fetal tissue were to be treated as “pathological waste,” a term that encompassed all human tissue resulting from surgery, labor and delivery, autopsy, embalming, or other procedures. Everything other than a corpse, more or less, could be disposed of under these rules—an amputated limb, an excised tumor, or a diseased organ.
In 2017, however, the Texas legislature enacted a new section of the Texas Health and Safety Code, creating a separate category for “embryonic and fetal tissue remains.” Tissue in this category cannot be treated like all other “pathological waste,” but, rather, must be treated in a manner similar to human remains. The new provisions were adopted, according to the law’s preamble, “to express the state’s profound respect for the life of the unborn by providing for a dignified disposition of embryonic and fetal tissue remains.”
The new provisions permit disposal of such tissue only through burial, cremation, or interment following steaming or incineration. In other words, the results of a miscarriage or abortion, no matter how small, have to be buried or the ashes scattered. The law does not apply to embryonic or fetal tissue that is expelled or removed outside of a healthcare facility—a miscarriage, for example, that occurs while a woman is at home and does not require any surgical intervention would fall outside the law. But the law applies to every type of healthcare facility (even, the opinion muses, an ophthalmologist who a woman happens to be visiting when she suddenly miscarries) and every type of terminated pregnancy, whether spontaneous or induced. These burial and cremation procedures would apply to a significant number of the 80,000 miscarriages and 55,000 abortions that take place in Texas in a typical year.
Healthcare facilities are permitted to turn over the remains to any entity on a new state registry that offers either free or low-cost common burials or provides funding for any permissible type of disposition. Along with strict substantive requirements, the law and corresponding regulations impose significant recordkeeping burdens on healthcare facilities and significant costs compared with the usual treatment of pathological waste.
The Challenge to the Embryonic and Fetal Tissue Law
In the words of Judge Evans, who presided over the recent trial, the basic claim in this lawsuit is that the new rules “impose onerous, unjustified, and medically unnecessary burdens on women seeking miscarriage management, ectopic pregnancy treatment, and abortion care in Texas in violation of the Due Process Clause of the Fourteenth Amendment.
In defense, the State of Texas argued that it is entitled to express its respect for unborn life and that the new tissue disposal laws do not substantially interfere with abortion access. Therefore, the state argued, the rules were a legitimate exercise of the state’s power.
The court sided with plaintiffs, in a ruling that followed clearly from the US Supreme Court’s abortion cases.
Prior to the Supreme Court’s 1973 ruling in Roe v. Wade, abortion was criminalized in about two-thirds of the states. Earlier in our history, abortion had been largely unregulated, but a variety of forces combined to increase the regulation and criminalization of the procedure. In Roe, a majority of the Supreme Court held that the Fourteenth Amendment’s Due Process Clause protected a woman’s right to terminate a pregnancy, at least up to a certain point. Roe embraced the trimester framework, under which states could not regulate abortion during the first trimester; could regulate it only to preserve the woman’s health during the second; and could regulate or restrict it completely, unless abortion was necessary to save the life or health of the woman, during the third trimester because its interest in protecting fetal life becomes compelling when the fetus reaches the point of viability.
Roe was as much the start as the end of the controversy over abortion. Anti-abortion activism has been strong in the decades that followed Roe. It has taken different forms along the way—feverish and sometimes violent in the 1980s, ruthlessly strategic in the 1990s and 2000s, and, now, involving blunt and often unconstitutional attacks by state legislatures on the very core of the abortion right.
The Supreme Court has played a recurring role in the abortion wars. While it has handed the anti-abortion activists many wins, it has stood firm on the basic idea that women have a constitutional right to terminate a pregnancy before a certain point. In 1992, in Planned Parenthood v. Casey, the Court reaffirmed the basic principle of Roe, but revised the framework for analyzing the constitutionality of abortion restrictions. A state can express its interest in potential life from the outset, but, before viability it cannot impose an undue burden on a woman’s right to terminate a pregnancy. In shorthand, an undue burden exists if “a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” When laws do not confer “benefits sufficient to justify the burdens upon abortion access that each imposes,” then “each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”
In Casey, the Court applied the new standard to uphold provisions of the law mandating pre-abortion counseling and a waiting period, as well as a provision requiring parental consent for minors (with a judicial bypass option), but it struck down a provision requiring married women to notify their husbands before obtaining an abortion.
Much of the anti-abortion activity after Casey revolved around passing more and novel restrictions—in part to reduce access to abortion and in part to queue up more opportunities to challenge Roe and Casey. The indirect restrictions on abortion access generally made it more difficult for doctors to provide abortion care, more difficult for clinics to stay in business, and more difficult for women to obtain abortions. These so-called TRAP laws have made access difficult, if not impossible, for many women.
In Texas, after significant changes to state funding for family planning and passage of burdensome TRAP laws, forty percent of clinics providing abortion care in the state were forced to close.
In 2016, however, the Supreme Court struck down two of Texas’s TRAP provisions—one that required abortion providers to have admitting privileges at a hospital within 30 miles of the clinic and one that required abortion clinics to be built and outfitted like ambulatory surgical centers. In that case, Whole Woman’s Health v. Hellerstadt, the Supreme Court found no evidence of Texas’s claim that these laws protected women’s health and concluded that they imposed an undue burden on women’s right to seek an abortion. Quite the contrary. 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.
Undeterred, the Texas legislature took up a whole new slate of anti-abortion bills in 2017, passing several of them (described above). The central question in the fetal remains case is whether the new rules run afoul of the Court’s abortion jurisprudence.
The Ruling in Whole Woman’s Health v. Smith
The court first considered whether Texas has a legitimate interest in regulating the disposal of embryonic and fetal tissue. Without that, the law fails the undue burden test even without weighing the benefits and burdens on women who wish to terminate their pregnancies. At the outset, the State of Texas conceded that its new rules on the disposal of embryonic and fetal tissue remains serve no medical or public health purpose. The state’s only objective, it argued, was to “promote respect for life and to protect the dignity of the unborn.” The question, then, is whether it has a legitimate interest in promoting the “dignity of the unborn” when it only comes into play for embryos and fetuses that no longer have potential life.
The judge in Smith concluded that it is a close call whether the state can express respect for potential life after a pregnancy has ended. On the one hand, a prior Supreme Court ruling suggested that a state might have an interest in the sanitary disposal of fetal remains “but perhaps not in mandating the burial of an embryo at the earliest stages of formation.” But that issue was not fully resolved, and the case in which it was raised, was overruled on other grounds by Casey. It is thus safe to say that the Supreme Court’s jurisprudence does not directly answer this question. Lower federal courts have considered similar laws on fetal remains from other states, but have reached divergent results. In a recent case, Planned Parenthood v. Commissioner of Indiana, the US Court of Appeals for the Seventh Circuit held that a statute similar to the one in Texas did not serve a legitimate state interest. A few decades earlier, however, the Eighth Circuit upheld a law like this one, although it deemed the question “close.” States are entitled under Casey to enact laws that express a preference for childbirth over abortion, yet not supposed to mandate a moral code.
The court in this case decided to simply assume the existence of a legitimate interest for the sake of argument, and then to consider whether the law could survive the undue burden analysis. Because it found an undue burden, it did not need to say as a matter of law whether the state’s interest in expressing respect for unborn life was legitimate when applied only to situations in which the pregnancy had already ended in miscarriage or abortion.
The court then moved to the benefits-and-burdens analysis. Not surprisingly, the court found that the remains law confers minimal if any benefits. The state articulated a desire to provide a dignified disposition of remains, but, given that individuals take very different views about the meaning of “dignity” in this and other contexts, it is hard to declare that a benefit. The law, for example, permits common burials and the scattering of ashes, both methods of disposition to which the Catholic Church would object as undignified. Some religious traditions view disposition of ashes in a landfill to be dignified, but the law expressly prohibits this practice. It is thus hard for a law of general applicability to achieve “the subjective benefit of expressing respect or conferring dignity” because success “depends on one’s perception of the prescribed treatment and disposition methods.” Moreover, the judge suggested that this interest, even if successfully achieved, is “relatively light” when compared to “protecting women’s health or potential life.” Given the messiness of life and death, and the messiness of the way pregnancies might end, the court found it far-fetched to see how the search for dignity could be meaningfully undertaken in this way.
Texas argued that the remains law serves its interest in expressing a preference for childbirth over abortion. Some women, it speculated, might not seek an abortion if forced to grapple with the requirements regarding disposal. But, given the many other ways in which Texas has chosen to express that preference—with some of the most stringent abortion laws in the nation—the court found any benefit in this regard to be de minimus. As the plaintiffs demonstrated at trial, most women who miscarry or seek an abortion are well aware of the impact of that decision on the embryo or fetus. Texas does not need to go the extra mile to persuade them against it.
While the court found the benefits to be “light” and “de minimus,” it found the burdens to be substantial. Let’s cut to the chase. The court concluded that
The evidence in this case overwhelmingly demonstrated that if the challenged laws were to go into effect now, they would likely cause a near catastrophic failure of the healthcare system designed to serve women of childbearing age within the State of Texas. This would not simply be a failure of the healthcare system serving women who seek to voluntarily terminate a pregnancy but also a failure of the system serving the thousands of Texas women who seek medical care for pregnancy complications and miscarriages. The simple fact is that Texas currently has no viable integrated system in place for disposing of embryonic and fetal tissue remains in compliance with the challenged laws nor has Texas appropriated resources to insure the challenged laws operate as intended.
This strong conclusion was based on a careful parsing of the facts presented at trial, which led the court to two firm conclusions. First, it found that the options for disposing of embryonic and fetal tissue remains would be unreliable and so difficult to procure that many health care providers would be forced to stop providing obstetric or gynecologic care entirely. Second, the court concluded that the law burdens women by imposing a unitary view of when life begins and what constitutes appropriate treatment of remains.
The first conclusion was based on exhaustive testimony about the currently precarious system of tissue remains and the factors that would grind the whole thing to a halt under the new rules. Currently, under the traditional rules that permit embryonic and fetal tissue to be disposed of in the same manner as pathological waste, there is only a single vendor in the entire state willing to provide the service. Securing services of that vendor was difficult and lengthy, and that vendor is not equipped to comply with the new requirements. Rather, the new law would require health care providers to work with funeral homes, crematoriums, and cemeteries in order to create an entirely new system of disposal. None of those institutions, however, are equipped to deal with this type of tissue; representatives of several testified at trial that they could not possibly absorb the quantity of burials or cremations required for every miscarried or aborted embryo and fetus.
Although the Catholic Church made a “non-contractual, non-binding” offer to provide help with the required burials, it could withdraw the offer at any time and, in any event, did not commit to any particular level of help. The Catholic Church offered no evidence that it has the capacity to handle all the burials (it doesn’t believe in “scattering” of ashes), nor does it control all the Catholic cemeteries in the state. The state law created a registry for those willing to offer help with low-cost or free burials or financial assistance. The registry has only a few entrants, and none provided information suggesting a concrete ability to implement the new disposition requirements. All told, “implementation of the challenged laws would deprive healthcare providers, especially those offering abortion care, of a reliable and viable system for disposing of their embryonic and fetal tissue remains.” Given the state’s history of interfering with abortion care (detailed throughout the opinion), the court was not inclined to count on the wing and a prayer that would make this misguided new system work.
The court’s second conclusion—that the “challenged laws impose intrusive and heavy burdens on women whose beliefs about the status of embryonic and fetal tissue and the meaning of abortion or miscarriage diverge from the viewpoint endorsed by the State”—was based on its understanding of the Supreme Court’s abortion precedents. In Casey, even as the Court paved the way for states to express their preference for childbirth over abortion, the Court wrote at length about the differences of opinion that people have about important questions about when life begins and whether abortion is moral or immoral. Casey permits states to express their views through informed consent requirements and other restrictions that do not unduly burden the choice to terminate a pregnancy. But the ruling does not permit states to pass a law declaring the life begins at conception, nor is it permitted to punish women who have different beliefs. “At best,” the court wrote, “enshrining the State’s view of pregnancy increases the grief, stigma, shame, and distress of women experiencing an abortion, whether induced or spontaneous. Women who do not believe embryonic and fetal tissue has a special status will be required to accept the State’s prescribed methods of disposition as a condition of obtaining pregnancy-related health care.” And, at worst, the court wrote, the 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.’” This language about personal decisions comes from Casey and was central to the way in which the Supreme Court balanced the interests of states against those of women seeking to exercise their right to terminate a pregnancy.
The force of these two conclusions compelled the court’s decision to permanently prevent enforcement of the challenged laws. Texas has already lost a significant percentage of its abortion providers and family planning services due to a combination of other anti-abortion restrictions and significant changes to the way in which it provides funding for family planning. The women of Texas cannot afford any further collapse of the women’s healthcare network.
Texas has already announced its plans to appeal the ruling, as it has all the other cases in which it has been smacked down for unconstitutionally intruding on the right of women to terminate a pregnancy without undue burden from the government. With all their concern about dignity and human life, the state should concentrate on improving its appalling record on sexual and reproductive health. Its rate of maternal mortality is rising, as that same statistic falls across the globe. Texas has the highest rate of repeat teen pregnancy in the country, and one of the highest initial rates. It is a leader in unwanted pregnancy, STIs, and uninsured women. Are these really the things for which the state would like to be known?