Federal Judge Again Delays Fetal Burial Rule

In an order issued Friday afternoon, U.S. Judge Sam Sparks again put on hold a proposed health department rule that forces women to bury or cremate their fetus or embryo after an abortion or miscarriage, regardless of gestation period.

The short two-page order makes clear the state is not allowed to implement the rule, scheduled to take effect today, Jan. 27. The court will figure out a trial date in about a month. The full order can be read here.

Sparks temporarily stopped the anti-choice rule from being enacted on Dec. 19, and again halted its implementation following a two-day hearing that concluded on Jan. 4.

"Today, Judge Sparks saw past the state's claims and ruled on the right side of history. This ruling allows Texans to have the dignity to continue to make their own private health care decisions," said plaintiff, Amy Hagstrom Miller of Whole Woman's Health, in a statement following the order. "This restriction, just like the many before it, all across our nation, does not create any health benefit for women and is strictly designed to limit access to safe, quality abortion care. We will not back down and are thrilled that we were victorious for Texans."

During the hearing, abortion providers, represented by the Center for Reproductive Rights, argued the rule imposes burdens on providers and patients, already saddled with the lasting impact of the state’s previous abortion restrictions. Local abortion provider Dr. Tad Davis of Austin Women’s Health Center called the rule “cruel,” and “emotionally traumatic” for his patients. The rule, providers contend, will only shame and stigmatize abortion-seeking women.

Moreover, clinics could identify only one cremation company willing to offer services at a reasonable rate, and as the past has shown them, that company could be targeted and threatened by anti-choice activists, leaving clinics in financial jeopardy.

The state argued the rule “no way regulates a woman’s right to choose” or places any type of burden, cost or otherwise, on clinics. But by the state’s own admission, the rule doesn’t advance public health, rather its mission is to promote “dignity” of the unborn.