State Offers No Evidence of Health Benefit During Fetal Burial Rule Hearing

Austin abortion provider calls rule “cruel” to patients

Amy Hagstrom Miller of Whole Woman's Health testified during the a hearing challenging the state's fetal tissue remains rule. Miller cautioned the rule could jeopardize abortion providers' ability to remain open.
Amy Hagstrom Miller of Whole Woman's Health testified during the a hearing challenging the state's fetal tissue remains rule. Miller cautioned the rule could jeopardize abortion providers' ability to remain open. (Photo by John Anderson)

A federal hearing challenging a proposed state health department rule that would force women to bury or cremate their fetal and embryonic remains after an abortion, miscarriage, or ectopic pregnancy (regardless of gestation period) began in U.S. Judge Sam Sparks’ downtown courtroom on Tuesday, Jan. 3.

Sparks temporarily halted the anti-choice rule from taking effect as previously scheduled on Dec. 19, awaiting a full trial.

During the five-hour hearing, abortion providers, represented by the Center for Reproductive Rights, relayed their fears about the “vaguely worded” rule and the burden it would place on patients and providers, already struggling in the wake of damage caused by House Bill 2 abortion restrictions.

Longtime Austin OB-GYN and abortion provider Dr. Tad Davis of both Brookside Women’s Medical Center and Austin Women’s Health Center called the rule “very unreasonable,” “cruel,” and “emotionally traumatic” for his patients. “There is no benefit for the patient or the state,” said Davis. In his more than three decades of medical practice, Davis could only recall less than four instances a year of women requesting a fetal burial after an abortion, and only one request (ever) from women who miscarried. If the rule goes into effect, it “would make patients feel very bad and add another burden that is unjust,” said Davis.

Speaking to the difficulty of securing a burial service provider, Amy Hagstrom Miller of Whole Woman’s Health, a network of reproductive health clinics, said companies her clinics contract with – from roofers to waste management – have faced intimidation and threats from anti-choice activists at children’s schools, the grocery store, and even church. Likewise, Davis said his Austin practice was in jeopardy of shuttering due to a vendor pulling out after anti-choice threats. As abortion providers have identified only one cremation company that will offer services that comply with the updated regulations at a reasonable cost, they worry that business will similarly be targeted and force the health clinics out of commission. Both Miller and Davis know well the impact of arbitrary abortion restrictions: HB2 forced three Whole Woman’s Health centers to close, including its flagship clinic in Austin, while Davis’ Killeen center shut its doors.

Missing the point that a right is no longer viable if there is no actual access to it, state attorney John Langley continually asserted the rule does “not regulate” women’s bodies or their right to an abortion, only health facilities. While with one hand the state sought to paint plaintiff witnesses as ideological, they used the other to point to an offer made by the Texas Catholic Conference of Bishops to pay for burial services as a possible low-cost solution for providers. However, as Miller and Davis both noted, not all patients are Catholic and so the service would be a religious imposition. Moreover, economist Dr. Anne Layne Farrar noted the Catholic group has a vested interest in shutting abortion clinics down, making the offer inherently risky. Plaintiff testifier Rev. Dr. Debra Haffner told the court the rule alone improperly enshrines a “specific view” of personhood (that life begins at conception) not shared by most religions. Calling the regulation “morally wrong,” Haffner said it would only serve to increase abortion stigma and “erase” women’s input from their own reproductive health choices.

State witness Jennifer Sims, deputy commissioner at the Texas Department of State Health Services, indirectly revealed the state’s weak defense: When asked how the rule enhances public health, Sims replied with ambiguity, saying, “When things are more clear, public health is ensured.” Sims was also unable to point to any instance in which depositing fetal tissue in a sanitary sewer or landfill (the current method employed by clinics) caused disease or infection, ostensible problems the department has claimed to protect with the regulation. That’s because, as admitted by state officials themselves, the goal of the rule is to instead protect the “dignity of the unborn," and as, providers argued, shut down abortion clinics.

The two-day hearing is expected to continue on Wednesday, Jan. 4. Check back online for updates.

For more, check out our War on Women's Health page.

A note to readers: Bold and uncensored, The Austin Chronicle has been Austin’s independent news source for almost 40 years, expressing the community’s political and environmental concerns and supporting its active cultural scene. Now more than ever, we need your support to continue supplying Austin with independent, free press. If real news is important to you, please consider making a donation of $5, $10 or whatever you can afford, to help keep our journalism on stands.

Support the Chronicle  

READ MORE
More abortion rights
Fifth Circuit Hears Objections to Texas' Fetal Burial Law
Fifth Circuit Hears Objections to Texas' Fetal Burial Law
Anti-abortion measure currently on hold pending appeals

Saskia Henn, Sept. 18, 2019

Council Members To Back Abortion Support Budget Measure
CMs Plan To Support Abortion Funds
Garza, Casar plan support for $100K in abortion assistance

Mary Tuma, Aug. 15, 2019

More Reproductive Rights
City Council Redirects APD Funds to Abortion Support Access
City Council Redirects APD Funds to Abortion Support Access
$250K to flow toward abortion support services

Mary Tuma, Aug. 14, 2020

Pro-Choice Groups Strike Back at Malicious Abortion Foe
Pro-Choice Groups Strike Back at Malicious Abortion Foe
Leader of small-town ban effort slapped with defamation suit

Mary Tuma, June 11, 2020

More by Mary Tuma
ICE Quietly Renews 10-Year Contract With T. Don Hutto Detention Center
ICE Quietly Renews 10-Year Contract With T. Don Hutto Detention Center
Taylor prison houses largely asylum-seeking women and has been the subject of numerous accusations of abuse

Aug. 21, 2020

SCOTUS Protects Abortion Rights, Upholds Texas Precedent
SCOTUS Protects Abortion Rights, Upholds Texas Precedent
Roberts concurs with majority to strike down Louisiana measure

June 29, 2020

KEYWORDS FOR THIS POST

abortion rights, Center for Reproductive Rights, Department of State Health Services, Tad Davis, Amy Hagstrom Miller, John Langley, Anne Layne Farrar, Debra Haffner, Jennifer Sims, Sam Sparks, Reproductive Rights

MORE IN THE ARCHIVES
NEWSLETTERS
One click gets you all the newsletters listed below

Breaking news, arts coverage, and daily events

Can't keep up with happenings around town? We can help.

Austin's queerest news and events

New recipes and food news delivered Mondays

All questions answered (satisfaction not guaranteed)

Information is power. Support the free press, so we can support Austin.   Support the Chronicle