In June, The Supreme Court Struck Down Texas’ HB 2 Law Because It Imposed “An Undue Burden On Abortion Access”

NY Times: Supreme Court Rules HB 2 Is Unconstitutional And Represents “An Undue Burden On Abortion Access.” On June 27, the Supreme Court ruled 5-3 that Texas’ anti-choice law HB 2 was unconstitutional. The New York Times’ Adam Liptak explained that the decision struck “down parts of a restrictive Texas law that could have drastically reduced the number of abortion clinics in the state, leaving them only in the largest metropolitan areas.” Passed in 2013, HB 2 required that abortion providers have admitting privileges to a hospital within 30 miles of their clinic and that clinics meet the standards of ambulatory surgical centers (ASCs). Liptak quoted the majority decision, authored by Justice Stephen Breyer, which said that each restriction “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.” From The New York Times:

The Supreme Court on Monday reaffirmed and strengthened constitutional protections for abortion rights, striking down parts of a restrictive Texas law that could have drastically reduced the number of abortion clinics in the state, leaving them only in the largest metropolitan areas.

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The decision concerned two parts of a law that imposed strict requirements on abortion providers in Texas signed into law in July 2013 by Rick Perry, the governor at the time.

One required all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other required doctors performing abortions to have admitting privileges at a nearby hospital.

“We conclude,” Justice Breyer wrote for the majority, “that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. 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.” [The New York Times, 6/27/16]

Several Days Later, Texas Officials Attempted To Quietly Pass Fetal Tissue Disposal Rules

Texas Tribune: Texas Officials “Quietly Proposed Rules” Regulating Fetal Tissue Disposal, Attempting To Bypass “Vetting By The Legislature.” After the Supreme Court struck down HB 2, Texas health officials “quietly proposed rules” mandating the “cremation or burial of fetal remains” following an abortion. In a July 21 article, the Texas Tribune’s Alexa Ura explained that these rules would not only “prohibit abortion providers from disposing of fetal remains in sanitary landfills,” but would also mandate that providers ensure the “cremation or interment of all remains -- regardless of the period of gestation.” Ura also noted that the rules were ushered along “with little notice and no announcement” and bypassed the normal process of “vetting by the legislature.” According to Texas state Rep. Donna Howard, because the proposal was “fast-tracked without due diligence,” there were many unanswered questions about the potential consequences of imposing additional requirements on abortion providers and patients. [Texas Tribune, 7/21/16]

Fronteras: Texas Officials “Will Hold A Public Hearing” On Tissue Disposal Rules On August 4. In an August 1 report for regional outlet Fronteras Desk, Monica Ortiz Uribe wrote that Texas health officials “will hold a public hearing” on the proposed tissue disposal rules on August 4. Ortiz Uribe noted that “if the rules are approved” after this hearing, providers would have to account for the subsequent increased costs and logistical hurdles starting in September. [Fronteras Desk, 8/1/16]

Texas Media Are Calling Out Texas Officials’ Latest Political Attack On Abortion Access

Dallas Observer: “Under-The-Radar” Proposed Tissue Disposal Rules “Would Burden Women And Facilities” Without Commensurate Health Benefits. In an August 2 article for the Dallas Observer, reporter Stephen Young outlined reproductive rights advocates’ reactions to the fetal tissue disposal rules. According to Young, the same “group of lawyers that shepherded the plaintiffs through” their challenge against HB 2 was already “readying itself to take on the state again” over the rules. He continued that the lawyers believed the new rules were similar to HB 2 in that they “would burden women and facilities providing abortion without providing” a commensurate benefit for patient health or safety. From the Dallas Observer:

The group of lawyers that shepherded the plaintiffs through the case that eventually led to the Supreme Court toppling most of Texas' onerous anti-abortion law, House Bill 2, is readying itself to take on the state again, this time over Texas Governor Greg Abbott's under-the-radar call to require facilities that provide abortion care or miscarriage management to bury or cremate all embryonic or fetal tissue resulting from miscarriages or abortions.

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Lawyers at the Center for Reproductive Rights say that Abbott's proposed requirement, which would become effective in September after a currently ongoing public comment period, would burden women and facilities providing abortion without providing a commiserate (sic) benefit. It's a similar argument to the women made by Center for Reproductive Rights Senior Counsel Stephanie Toti when she argued against state requirements that required admitting privileges at local hospitals for doctors providing abortions and that abortion clinics be outfitted as surgical centers: Requiring the fetal remains be interred or burned does nothing to make abortion safer, it simply makes getting one more onerous. [Dallas Observer, 8/1/16]

Houston Press: New Rules “Create An Undue Burden” And Will “Almost Certainly Trigger Costly Litigation For Texas.” According to Houston Press’ Megan Flynn, the proposed rules “create an undue burden” by forcing providers and patients “to perform otherwise religious rituals on aborted fetuses with ‘zero’ benefit to the health of Texans.” In an August 3 article, Flynn wrote that the same lawyers who successfully argued against HB 2 predicted the rules would “almost certainly trigger costly litigation for Texas.” Despite this, officials appeared undeterred, as “Governor Greg Abbott even used these proposed rules as a fundraising ploy” to entice supporters. From the Houston Press:

Just like Texas claimed its proposed abortion law would protect the health and safety of women — despite experts' insistence that it would do just the opposite — the state claimed this new fetus cremation rule would “enhance protection of the health and safety of the public.” And just like the Supreme Court ruled in Whole Woman's Health, attorneys for the Center For Reproductive Rights are calling BS on Texas.

Using the same argument they used in that SCOTUS case, these lawyers say these rules create an undue burden for Texas abortion providers by forcing them to perform otherwise religious rituals on aborted fetuses with “zero” benefit to the health of Texans.

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The attorneys also point out how Governor Greg Abbott even used these proposed rules as a fundraising ploy. As the Texas Tribune reported, Abbott said in his LIFE Initiative fundraising email, “I believe it is imperative to establish higher standards that reflect our respect for the sanctity of life. This is why Texas will require clinics and hospitals to bury or cremate human and fetal remains.” [Houston Press, 8/3/16]

The Austin Chronicle Reported Proposed Rules Are Considered “A New Low” For Anti-Choice Lawmakers “Committed To Making Abortion Inaccessible And Shaming Texans Who Have Abortions.” In a statement to The Austin Chronicle, NARAL Pro-Choice Texas executive director Heather Busby described the proposed rules as “a new low” for anti-choice lawmakers. She continued that by forcing providers to “be responsible for paying for the cremation and burials” lawmakers were “committed to making abortion inaccessible and shaming Texans who have abortions.” The July 15 article also included a statement from Planned Parenthood of Greater Texas, in which the affiliate warned that although the rules wouldn’t “significantly impact its operations” it remained “concerned about the health department’s ongoing targeting of abortion providers.” From The Austin Chronicle:

Heather Busby, NARAL Pro-Choice Texas executive director, says the financial burden caused by the rule change will land on abortion clinics and their patients. (HHSC confirmed to the Chronicle that providers, not the state, will be responsible for paying for the cremation and burials. And if you're wondering where they plan to locate the burial site, HHSC has yet to figure that out.) “This is a new low for our state's leaders who are committed to making abortion inaccessible and shaming Texans who have abortions,” said Busby. She considers the new regs a “frightening preview of the avalanche of anti-abortion legislation” that Texas lawmakers will propose next session.

Planned Parenthood of Greater Texas [PPGT] – which includes Austin – says the new changes won't significantly impact its operations since its current policy is to contract with outside medical professionals to safely transport the fetal tissue for cremation. However, they remain “concerned about the health department's ongoing targeting of abortion providers” with additional rules. “We urge state officials to recognize the importance of medical science in creating public health policies and to respect the rights of women to make personal healthcare decisions as affirmed by the U.S. Supreme Court last month,” said Sarah Wheat, PPGT's chief external affairs officer. [The Austin Chronicle, 7/15/16]

Houston Chronicle: Proposed Rules “Would Have A Costly Side Effect” And Would Not “Make Accessing Abortion Any Easier.” The Houston Chronicle’s Lydia DePillis reported that the proposed rules “would have have a costly side effect” in terms of their economic impact on women. In a July 8 article, DePillis explained that “burial and cremation … are significantly more expensive” than traditional medical waste disposal. For example, despite fetuses being “smaller than a golf ball in the first trimester, cremation can still cost several hundred dollars” while burial can run at least “$2,695, plus the cost of a gravesite.” DePillis noted that these costs were in addition to the cost of the abortion procedure itself. From the Houston Chronicle:

Disposal of medical waste, which can include human tissue as well as anything soaked in bodily fluids, isn't just like your typical curbside garbage pickup. It's heavily regulated, and has to be done by a specialized service. But for a clinic or hospital that carries out many procedures a day, it doesn't add much to the total price: Two companies the Chronicle called, Biomedical Waste Solutions and Cyntox, ranged between $50 to $100 for weekly pickup of one 28-gallon box.

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Although aborted fetuses are smaller than a golf ball in the first trimester, cremation can still cost several hundred dollars: The Neptune Society in Houston says it charges $595 for cremating a baby. Burial is even more costly. Houston's Miller Funeral and Cremation Services says the fee for burying a baby is $2,695, plus the cost of a gravesite, which is currently running at around $400.

That's a big add on top of the price of the procedure itself, which Planned Parenthood says typically runs less than $1,500. [Houston Chronicle, 7/8/16]

Other States Are Attempting To Mandate Burdensome Tissue Disposal Rules

The Daily Beast: Fetal Tissue Disposal Rules Illustrate Anti-Choice Group’s “Whack-A-Mole” Strategy For Pushing Abortion Restrictions. In a July 22 article for The Daily Beast, Samantha Allen wrote that, for abortion access advocates, combatting anti-choice restrictions was similar to “a game of whack-a-mole: Courts can declare some of them unconstitutional but, inevitably, more laws will pop up.” As an example, Allen cited the appearance of fetal tissue disposal rules -- championed by the national anti-choice group Americans United for Life (AUL) -- soon after the Supreme Court rejected portions of Texas’ HB 2. Allen noted that Republican presidential nominee Donald Trump’s running mate, Indiana Gov. Mike Pence, had already signed a law “requiring abortion providers to bury or cremate fetal tissue” earlier this year. In addition to Indiana, Allen wrote that “Ohio, South Carolina, and Mississippi have recently proposed similar requirements” as well. From The Daily Beast:

Striking down abortion restrictions is a game of whack-a-mole: Courts can declare some of them unconstitutional but, inevitably, more laws will pop up.

Now, in the wake of the Supreme Court’s decision in Whole Woman’s Health, which struck down significant portions of a Texas law, anti-abortion legislators may have found their most creative approach yet: requiring abortion providers to bury or cremate fetal tissue, instead of following the standard protocols for medical waste disposal.

Indiana Gov. Mike Pence signed a law including that requirement this year. As The Atlantic reported, lawmakers in Ohio, South Carolina, and Mississippi have recently proposed similar requirements.

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Anti-abortion groups—like Americans United for Life (AUL), the driving force behind these burial and cremation requirements—say that this is a matter of protecting human “dignity.” But abortion-rights advocates note that these measures place yet another burden on women’s health providers, potentially raising costs or impacting abortion access. [The Daily Beast, 7/22/16]