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“Fetal remains” rule still on hold

Take all the time you need.

As he considers a final ruling on the state’s fetal remains burial rule, U.S. District Court Judge Sam Sparks is delaying the start date of the rule for at least another three weeks.

On Wednesday afternoon, after attorneys for the state of Texas and the Center for Reproductive Rights made their closing remarks, Sparks said he would need more time to review evidence and witness testimony before making a final ruling about the state’s effort to require medical providers to bury or cremate aborted fetuses. The Texas Department of State Health Services had originally scheduled the rule to go into effect Dec. 19.

[…]

For the state, Sparks said he wanted further explanation on the logic behind barring providers from incinerating fetal remains, a medical waste procedure the state has long allowed. He also wanted direction on why the state’s rule should not be viewed as a political statement. He said he did not “think there’s any question” that there isn’t public health benefit to the proposed rule.

“There’s no health benefit, there’s no health problem, there was no problem to be fixed and it’s for the dignity of the fetus or however you want to describe it,” Sparks told state’s attorneys. “I think all life matters and needs dignity but that’s not the point…the point is just as I asked opposing counsel: ‘what is the thought of taking the majority of disposal out?'”

Sparks told attorneys with the Center for Reproductive Rights that he wanted them to identify from their evidence and witness testimony how the rule is unconstitutional and how it would create a burden for women.

Sparks said neither side had made headway on establishing how provider’s costs would be impacted if the rule were implemented.

See here and here for the background. This was a two-day hearing – here’s the Trib story from Day One.

Attorneys for the Center for Reproductive Rights, which sued to stop the rule, called witnesses at Tuesday’s hearing who continuously expressed that the rule is “vague,” doesn’t give enough clarity for medical providers and has no public health benefits.

Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, the main plaintiff in the case, said on the stand that the rule was “discriminatory” and “offensive.” She said while groups like the Texas Conference of Catholic Bishops have stepped up to take on the cost of cremations and burials, the rule is unclear about who would be responsible for making sure the remains are properly disposed of. She said that vagueness puts providers in a vulnerable position where they could face fines or disciplinary actions by the state if those non-medical groups do something wrong. Also troubling, Miller said, is that it’s difficult for abortion providers to keep a steady roster of medical waste vendors due to alleged harassment from anti-abortion groups.

“It’s confusing for most of us to figure what a clear path would be to compliance,” Miller said. “I find words like ‘interment’ and ‘incineration’ and ‘cremation’ and ‘funeral’ are really confused and used intermittently in a way that is difficult for us to understand and difficult for the public to understand.”

The Statesman notes that the Ag had a bit of a rough time on Tuesday.

U.S. District Judge Sam Sparks abruptly halted a hearing on the constitutionality of the rule and ordered state lawyers to appear in his Austin courtroom, with answers, at 8:30 a.m. Wednesday — a half-hour before the hearing was set to continue for a second and final day.

Visibly frustrated, Sparks said it appeared that the rule, drafted by state health officials and praised by Republican leaders for prohibiting fetal remains from being deposited in sanitary landfills, appeared to improperly countermand a state law allowing cremated ashes to be scattered over any private property with the owner’s consent.

“I want the state to give me answers about how one regulation can overrule another state statute,” the judge said.

[…]

The lead lawyer for the state, John Langley with the attorney general’s office, challenged both abortion providers by repeatedly pointing out that “the rules don’t regulate women at all,” but instead require health care centers to ensure that fetal tissue is properly buried or cremated. Nor does the rule impose funeral requirements on women because it doesn’t require individual burials for each fetus, he said.

Langley also argued that concerns about increased costs were overblown, pointing out that the abortion providers’ own economist estimated that the new rule would add only 54 cents to $1.56 in costs per abortion.

However, economist Anne Layne-Farrar testified that the anticipated cost was based on an estimate provided by the only crematorium that appeared willing and able to handle fetal tissue at a feasible cost. The Dallas-area crematorium, however, is unlikely to be able to handle medical waste from all Texas abortion facilities, let alone from doctor’s offices that provide miscarriage care, she said.

Layne-Farrar also said it was risky to rely on one vendor that, if lost, would force abortion providers to turn to funeral homes that would likely charge $500 to $700 per cremation.

When a lawyer for Texas suggested that clinics could save money by cremating several weeks’ worth of fetal tissue at a time, Layne-Farrar said most of the 11 funeral homes contacted for her study said ethical considerations prohibited them from cremating or burying more than one body at a time.

Does any of that give you confidence that this was something other than a hastily-decreed retaliation for the SCOTUS HB2 ruling from last year? I mean, come on. Judge Sparks had previously been expected to rule on Friday, but clearly we’re going to have to wait a little longer than that. The Chron and the Austin Chronicle have more.

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