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More on the “fetal remains” rule change

It’s stupid, harmful, unnecessary, expensive, and almost certainly in violation of the SCOTUS ruling in Whole Women’s Health v. Hellerstedt. But other than that, no biggie.

In the aftermath of a car accident in 2014, Denee Booker was told by her doctor that the child she was carrying had died in utero.

To avoid complications, she agreed with her doctor’s suggestion to remove the fetus instead of waiting for it to “naturally pass,” Booker told state health officials during a Thursday hearing on a proposed state rule that would require the cremation or burial of fetal remains.

“That I would have had to take or make either of those decisions is mind-boggling and terrifying,” Booker said of the proposed requirements. “I can’t imagine how much worse that would’ve made my situation.”

Booker was among dozens who testified on a pending rule change that prohibits hospitals, abortion clinics and other health care facilities from disposing of fetal remains in sanitary landfills, instead allowing only cremation or interment of all remains — regardless of the period of gestation — even in instances of miscarriages.

[…]

Medical professionals and others have also questioned whether the new rules would trigger a requirement for death certificates so that fetal remains could be cremated or buried.

Under current rules, the state requires funeral directors or a “person acting as such” who take custody of a dead body or fetus to obtain an electronic report of death before transporting the body, according to the associations’ letter.

The Funeral Consumers Alliance of Texas came out against the measure. Sarah Reeves, a representative for the group, testified that the state’s fiscal analysis of the rule change was incomplete because it found there would be no significant cost to individuals or businesses that must comply.

In a letter submitted to health officials, the group’s director wrote that the average “basic fee” for funeral services is $2,000.

The proposed rule does not indicate who would pay those costs. Hospitals and abortion providers currently contract with third-party medical waste disposal services.

During the hearing, Joe Pojman, executive director of Texas Alliance for Life, suggested that abortion providers should absorb any “nominal increase” in costs associated with the cremation or burial rule as some funeral homes and cemeteries do in cases of miscarriages.

In questioning the health-related justifications for the proposed rules, Planned Parenthood and NARAL Pro-Choice Texas testified that state health officials have not provided any evidence that current methods used by abortion providers to dispose of fetal tissue — which have been approved by the state for 20 years — are less safe or not optimal for public health and safety.

State officials have defended the rule change, saying it was proposed in “the best interests of the public health of Texas.” They also say the proposed rule change reflects the state’s efforts to affirm the “highest standards of human dignity.”

Planned Parenthood has pointed out that the proposed rules treat fetal tissue differently than other medical tissue.

The rule change would not apply to other human tissue that might be removed during surgery, for instance, and the existing disposal methods were not modified for the placenta, gestational sac and other tissue that results from miscarriages and abortions, the organization wrote to health officials.

“While we support reasonable updates to rules that are within the department’s statutory authority and protect and enhance public health and safety, the proposed rules go beyond the limits of this authority, do not further these aims and appear motivated solely by political forces,” said Yvonne Gutierrez, executive director of Planned Parenthood’s political arm in Texas.

The possibility of a legal challenge to the rule change hung over the hearing, with many repeating a warning by reproductive rights lawyers that the proposal “will almost certainly trigger costly litigation.”

See here for some background. The “possibility” of legal action is roughly 100%, I’d say. Lamar Hankins goes into great detail about why this proposed rule change is ridiculous, and it’s clear that this is another example of the state insisting it knows health and medicine better than any dumb ol’ doctors. The rules for this have been the same for 20 years, so the only motive I can think of for changing them now is backlash to Hellerstedt. Maybe the Department of State Health Services will reconsider before they make it official, but if not, we’ll see you in court again. The Observer, the Current, the Austin Chronicle, and Rewire have more.

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