Less than a month after Justice Anthony Kennedy’s retirement announcement and Judge Brett Kavanaugh’s nomination to the Supreme Court, Roe v. Wade’s already a hot topic in courtrooms dealing with abortion-adjacent cases. In the legal battle over a Texas fetal burial law that went to trial on Monday, the federal district judge introduced the case by acknowledging the emotional stakes involved—and promising he’ll decide the case based on “current legal precedent, not potential future rulings.” Lest you think that’s unrelated, Judge David Ezra cited the Supreme Court vacancy and “speculation” about Roe’s fate.
It’s the second time Texas has tried to implement a fetal burial law. The first effort, via the Health and Human Services Commission, came in 2016. Another district court judge, Sam Sparks, struck that rule in 2017. He concluded it was vague, caused undue burden on women, and had “high potential” for irreparable harm.”
This second attempt, an actual state law—called Senate Bill 8—requires health clinics and hospitals to bury or cremate fetal tissue from ectopic pregnancies, miscarriages, and abortions. Judge Ezra agreed to block February implementation of the law on the basis of the 2017 ruling and recognition that abortion rights proponents arguments were sound.
There’s an obvious, overarching problem: The law treats everything from a blastocyst or embryo to a fetus as a person. It’s an overt effort to deter women from seeking abortion—and to sneakily establish embryos as legal entities deserving of the same treatment as people, a.k.a. an effort to entrench the notion of embryonic personhood.
One woman who lost a pregnancy at 11 weeks and had to have an abortion procedure to remove the pregnancy tissue has already testified. She told the court of how she found herself—immediately pre-procedure, already hooked up to an IV—presented with a choice between hospital and private burial. The form listed her relationship to her “tissue” as “mother.”
Having a burial disrupted her grieving process: She was forced to treat the loss of a pregnancy as the loss of a person. She had no control over what happened next to the product of her body she hoped would become her child. One can only hope her testimony made an impact. Attorney General Ken Paxton’s statement on the case leaves little room to doubt that the state’s willing to employ whatever rhetoric they find effective, no matter how distant from the truth, to argue for the law’s reasonableness.
"Texas has chosen to respect unborn life by adopting rules requiring the dignified treatment of fetal remains, rather than allow healthcare facilities to dispose of the remains in sewers or landfills," Paxton said in a prepared statement. "At the trial, we'll demonstrate that the rules are constitutional and do not impact the abortion procedure or the availability of abortion in Texas. I'm confident in our arguments and look forward to the courts ultimately upholding Texas law."
The Texas Alliance for Life is holding protests and vigils outside of the courthouse, for their part.
Of course, this isn't the only horrific provision of SB 8. The bill also forbids a certain type of medical procedure necessary to abortion “unless the fetus is deceased.” That provision was challenged by the Center for Reproductive Rights and Planned Parenthood last summer and struck in November. Hopefully SB 8’s fetal burial provision will meet the same fate.
