Texas can’t force abortion clinics to bury or cremate fetal remains, a federal judge has ruled. Judge David A. Ezra, a senior judge in the Federal District Court in Austin, argued that requirements to bury fetal remains fundamentally undermine a woman’s right to abortion. Ezra was appointed to the bench by Ronald Reagan.
Texas ‘Fetal Burial Law’ Struck Down
In 2017, the Texas legislature passed legislation requiring Texas abortion clinics and other medical facilities to bury or cremate fetal remains from abortion, miscarriage, ectopic pregnancy, or stillbirth. The law was substantially similar to an Indiana law signed by then-Governor Mike Pence. That law was also blocked by a federal judge in 2017.
Whole Woman’s Health, which operates clinics in Texas, sued the state, asserting that the law was little more than an effort to shame and stigmatize women. Judge Ezra agreed. “[The law] would be a violation of a woman's right to obtain a legal abortion under the law as it stands today," he wrote in his opinion.
How Fetal Burial Laws Criminalize Women, Pregnancy, and Even Periods
Fetal burial laws are built on the faulty scientific notion that miscarriages and abortions always produce a body. Until the eighth or ninth week of pregnancy, a fetus is so small that it might be missed amid the tissue and blood of an abortion or miscarriage. So for many women, there’s no “body” to speak of.
Judge Ezra spoke to this point, arguing that the law would pose an undue burden to women who have miscarriages. If a pregnant woman happened to miscarry while visiting an eye doctor, “that office has a legal obligation to inter or scatter the ashes of the embryonic or fetal tissue in accordance with the challenged laws,” he wrote.
The backlash against similar laws has emphasized that fetal burial mandates may criminalize periods. In the early stages of pregnancy, a miscarriage is indistinguishable from a period. A woman having a miscarriage may think she is getting her period. So not only do these laws make every woman suffering a miscarriage or stillbirth a suspect; they make menstruation itself a potential legal issue.
The Supreme Court Isn’t the Only Court That Matters
News this week has centered around judicial nominee Brett Kavanaugh’s views on choice, and his potential effect on women’s right to control their bodies. But the rightful furor over the Supreme Court neglects a crucial fact: it’s often lower court judges who make critical abortion decisions.
Because the president appoints federal court judges, the need to protect the judiciary extends well beyond the Supreme Court. Lower court judges could be the ones to save us from government overreach. Even when lower court decisions are appealed to the Supreme Court, the Court grants certiorari and agrees to hear only about 1% of those appeals.
Kavanaugh will likely end up on the Supreme Court. Progressives, moderates, and everyone else who cares about women can’t allow this to demoralize them. The lower courts can protect or destroy choice when the Supreme Court declines to hear an abortion case. The only way to protect those courts is to elect progressive candidates, and ultimately, to get Trump out of office.
When abortion is illegal, women die. Choice is more than just a disagreement between two parties. Without choice, governments have the right to let women die because they got pregnant. Forced pregnancy and illegal abortions kill women. Choice saves lives.