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“Fetal remains” law blocked in court

It’s deja vu all over again.

Texas’ second attempt to require health providers to bury or cremate fetal remains has been temporarily thwarted by a federal judge and another court battle is imminent.

In his Monday afternoon ruling, U.S. District Judge David Alan Ezra said the Texas Department of State Health Services’ arguments “lack merit.”

“For those eager for a result in this case, it is tempting to read the Court’s decision as a signal on who will win at trial or as a determination of the validity of Plaintiffs’ claims,” Ezra said. “Such guesswork would be premature. The Court only concludes Plaintiffs establish injunctive relief is warranted to preserve the status quo.”

The current fight is over Senate Bill 8, a law passed during the 2017 legislative session that has a provision forcing health care facilities to bury or cremate any fetal remains from abortions, miscarriage or treatment for ectopic pregnancy, regardless of their patients’ personal wishes or beliefs. That provision was supposed to go into effect Feb. 1.

In his temporary ruling, Ezra said attorneys for the Center for Reproductive Rights, who are representing the plaintiffs, showed evidence that the new rule would infringe on women’s right to an abortion and that medical providers would have a difficult time following through with the rule, causing them to be fined.

Ezra’s ruling echoes a case from 2016 where reproductive rights groups sued to stop the Health and Human Services Commission from implementing a similar fetal burial rule. During the multi-day court hearing at the time, state attorneys said the rule was designed to provide aborted or miscarried fetuses a better resting place than a landfill. They also argued that there would be no cost for patients to worry about and only miniscule costs for providers. The state also said that there were multiple groups willing to help with costs.

U.S. District Judge Sam Sparks struck that rule down in 2017, saying it was vague, caused undue burden on women and had high potential for irreparable harm.

See here for some background on the legislation. This is just an injunction hearing, to decide whether to allow the law to take effect while the litigation is ongoing. The hearings and rulings on the merits come afterward. As noted, the rule that preceded this law was struck down almost exactly a year ago; the state is of course appealing that ruling. From the zealots’ perspective, it almost doesn’t matter if they win or lose. It’s time consuming and expensive for the clinics to fight – and let’s not forget, even as the omnibus HB2 was struck down awhile back, many clinics closed for good in the meantime – and it keeps the rubes whipped up. What’s not to like for them? A statement from the Center for Reproductive Rights is here, and the Current has more.

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