Fetal Burial Trial Ends with Unanswered Questions

Judge Ezra voices concern over women's access to health care under SB 8

David Ezra
David Ezra

Dr. Karen Swenson felt compromised.

As an OB-GYN and former chief of staff at Seton Medical Center Austin, her patients were forced to sign off on having their fetal remains buried after experiencing miscarriage. She told the story of a Muslim patient who had to delay her miscarriage management procedure in order to seek permission from her Imam to bury the remains at a Catholic cemetery. The distress among patients over the policy was so problematic, Swenson was forced to move her early pregnancy loss care to a different provider altogether.

In federal court this week, Swenson testified against the state’s latest anti-choice law – as part of the 2017’s Senate Bill 8 – that would cruelly force women to bury or cremate their fetal tissue after an abortion or miscarriage. In a five-day trial that concluded today, July 20, abortion providers challenging SB 8 argued that the law would infringe on their patient’s personal beliefs, shame them, and add barriers to care. (For coverage of the first part of the trial, see this week’s issue.) As a physician of more than three decades, Swenson says burying and/or cremating fetal tissue “deviates from the general way we manage all human tissue” and sets up a system that can see “more errors and complications.” (Current law requires fetal tissue to be incinerated and disposed of in a landfill or ground up and placed in a sewage system.) Moreover, it “violates patient autonomy” and is “disrespectful” to a patient’s personal and religious beliefs and values. Not only does the law provide no medical benefit, it would impose “harm” on patients, said Swenson.

In lieu of arguing for a medical benefit, state attorneys – in a departure even noted by presiding U.S. Judge David Ezra – simply sought to counter that the new disposal method offers needed “dignity” to the fetal and embryonic remains, a wildly subjective measure. The “unusual” change in defense of a reproductive rights law, said Ezra, makes the case “extremely unique” and, in turn, also makes finding precedent “all the more difficult,” since claims of health and safety are typically “paramount” in abortion law cases.

In the trial’s final days, the state propped managers of funeral and cremation homes on the stand who attempted to demonstrate a willingness to contract with abortion providers, to skepticism from Ezra. James Shields of Our Lady of the Rosary Catholic Cemetery and Morgan Cook of The Gabriels Funeral Chapel and Crematory – both of nearby Georgetown – said they’d work with abortion clinics to comply with SB 8. However, questions of their ability, capacity, and lack of experience working with abortion providers arose, not to mention their overt Catholic affiliation, a glaring problem. “There’s a significant minority of women in this state who are not Christian,” said Ezra. “The issue of a Catholic cemetery requiring the placement of a Christian symbol [on the gravestone] offending and discouraging women from having abortion is relevant.”

While the state tried to convince the court Texas abounds with funeral homes and crematoriums that have the potential to comply with SB 8, Ezra appeared unmoved by the argument, calling it “pure speculation” to assume all those facilities are certain to do so. Only 16 facilities are currently on a voluntary state registry of possible vendors, and none have entered into any long-term contractual agreements with abortion providers. “My concern is that we may have 1,300 funeral homes but what percentage are actually going to do this?,” he asked. “It’s not what they can do – it’s what they will do – especially as we’ve heard about intimidation and threats facing facilities who then no longer wanted to deal with aborted remains. I’m not going to accept they’re all ready willing and able [to work with abortion providers], the fact of the matter is we don’t know, and that’s a problem.” Ezra assigned the state to answer how many vendors have firmly committed to the service; how many on the registry are secular organizations; and if the vendors are spread out geographically.

Ezra also voiced worry over the potential of SB 8 to leave women – including those who miscarry – without access to health care, as some clinics may be unable to comply with the onerous law. “Those who staunchly oppose abortion should be concerned that the law doesn’t hamper those women who are also anti-abortion but have a miscarriage then need to seek medical treatment,” he said. “This needs to be dealt with carefully.” In an additional rebuke, he also pinged the state for failing to craft a legitimate plan to implement the anti-choice law. “We don’t have reliable evidence to show there’s a serious plan in place and that the whole system is not going to just crash and that’s not good,” said Ezra.

Even if the capacity exists and theoretically enough vendors contract with abortion providers, there remains another striking conflict – the anti-abortion views of some of the funeral and crematorium providers. For instance, Our Lady of the Rosary is anti-choice, making its potential future relationship with abortion providers all the more tenuous and unstable. And perhaps that’s the precise strategy from Texas lawmakers – force already stretched thin abortion providers in Texas to contract with anti-choice, largely Catholic facilities (if they ever sign a contract to begin with) who can dump them at any time and leave them in direct conflict with state law, causing them to close their doors. As Ezra noted in his closing statement: “I know there are some people out there who would love to see the whole [abortion care] system go down.”

Both sides have until Aug. 3 to provide written closing arguments. Ezra provided no strong indication of when he’ll rule. Similar laws in Louisiana, Arkansas, and Indiana have all been blocked by the courts.

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repro rights, reproductive rights, David Ezra, Karen Swenson, Senate Bill 8

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