David Ezra, Senior U.S. District Judge in the Austin federal courthouse, on September 5, 2018, blocked a 2017 Texas law requiring embryonic and fetal tissue remains, whether from a miscarriage or abortion resulting from pregnancies before 20 weeks, to be cremated or buried instead of being incinerated and deposited in a landfill or be ground up and put into a sewage system. The judge issued an injunction halting the enforcement of that law and ruled that the burial requirement placed substantial obstacles for women seeking medical care and their medical providers and facilities.
Ezra also stated that the law was in violation of the U.S. Constitution’s Equal Protection and Due Process clauses since it would impose burdens on women seeking an abortion or having experienced a pregnancy loss. His view was that such a law would likely cause a catastrophic failure of the health care system that serves women of childbearing age within the state because they would be unable to put together funeral homes as well as crematoriums and cemeteries to meet those specific disposal needs.
The Texas lawyers argued that Texas as a state has a right to promote a respect for life by making sure that fetal remains, whether from an abortion or miscarriage, are treated in a manner that is dignified and that the ashes are scattered in a proper manner. However, abortion providers argued that it would perhaps force clinics and health centers to close because of so few vendors that are able to meet those requirements. Currently, Texas has no system in place for disposing of the tissue that would be in compliance with the challenged law. The providers also said that it would create an improper situation against the beliefs of pregnant women if such fetal tissue is required to be treated like a person.
Ken Paxton, the Texas Attorney General, said the ruling was disappointing and will be appealed and could even head to the U.S. Supreme Court. He remains confident that courts will eventually uphold that law, which upholds the dignity of the unborn and would prevent fetal remains from being treated like medical waste.
Judge Ezra, who had presided over a five-day trial on the law in July, stated that his ruling included a concession to Paxton’s lawyers by the acknowledgment of the fact that states have a legitimate interest in enacting a workable law that is well thought out and is designed to promote respect for potential life.
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