Last Wednesday, U.S. District Judge David Alan Ezra struck down a Texas law requiring the burial or cremation of fetal remains. The judge said Senate Bill 8 violated the Equal Protection and Due Process provisions of the Fourteenth Amendment. Ezra predicted that if the law were upheld, pregnant women would experience a “near catastrophic failure” in obtaining speedy and quality healthcare attention in Texas.

Plaintiffs Whole Woman’s Health, other women’s clinics and doctors have been fighting fetal burial restrictions for two years, officially suing the state over Senate Bill 8 (SB 8) in 2016. The bill affected every Texas health care facility that provided medical attention to pregnant women and applied to the disposition of fetal remains from all miscarriages, abortions and ectopic pregnancies.

The state’s reasoning for the bill, according to the bill, was 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.”

Judge Says Texas SB 8 Violates Women’s 14th Amendment Liberty

Judge Ezra said that the law placed an undue burden on women seeking an abortion or suffering a miscarriage by forcing medical facilities to use “unreliable and nonviable waste disposal options” which would reduce access to abortion in Texas.

Ezra also ruled that the law placed an undue burden on women with religious and personal beliefs that differed from the state. He said that what the state considers a “dignified” burial is a subjective measure, referencing how Islam, for instance, generally forbids cremation.

In his 53-page opinion, Judge Ezra wrote that the Texas law gave special status to embryonic and fetal tissue from the moment of conception and made implications that went against a women’s liberty protected by the 14th Amendment.

“In enacting the challenged laws, Texas endorses the viewpoint that embryonic and fetal tissue remains should be afforded special status from the moment of conception and should be handled in a manner similar to human remains,” Ezra wrote in his 53-page opinion. “Such a viewpoint communicates strong implications about when life begins and the meaning of a miscarriage or abortion. And that state-sanctioned viewpoint goes to the heart of the liberty protected by the Fourteenth Amendment and recognized in the protection given to a woman’s right to decide whether to carry a child to term.”

At the moment, fetal remains are either cremated or disposed of in sanitary landfills, the same way other medical wastes are disposed of in Texas.

The Texas Battle Over Abortion and Women’s Rights

Whole Women’s Health and other advocates against SB 8 insisted the fetal burial rules were unconstitutionally burdensome and failed to confer any medical benefits. They argued the law would also deter pregnant women from seeking needed abortions, and shame women seeking abortions or suffering from a miscarriage or ectopic pregnancy.

Ezra agreed and said, “As the disposal system is currently structured, implementation of the challenged laws would likely cause the shutdown of women’s health care providers unable to patch together a hodgepodge of funeral homes, crematoriums, and cemeteries to meet their disposal needs.

“Women would experience further limited abortion access in a state where such access had already been greatly diminished,” he added.

But Texas Attorney General Ken Paxton would not agree with Ezra, saying he would stand up for SB 8 and the fetal burial regulations it represents.

“Today’s ruling is disappointing, but I remain confident the courts will ultimately uphold the Texas law which honors the dignity of the unborn and prevents fetal remains from being treated as medical waste,” Paxton said.

Whole Woman’s Health tweeted that, “Today serves as a reminder that Texans of all faiths and backgrounds should be able to make the decisions that are best for them based on their own beliefs.”

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