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“Fetal remains” trial ends

Now we wait for a ruling.

State and reproductive rights attorneys wrapped up a five-day trial in federal court on Friday that will determine whether a Texas law requiring health providers to cremate or bury fetal remains can go into effect.

U.S. District Judge David Alan Ezra told attorneys on Friday that he has “not made up my mind on how I’m going to rule on this case” and is awaiting written closing arguments due on Aug. 3.

He’s expected to rule around the end of August.

The law at the center of the case is Senate Bill 8, passed in 2017, which requires the burial or cremation of fetal remains. Legislators passed the bill following a ruling that year by U.S. District Judge Sam Sparks that struck down a similar rule implemented by the Texas Department of State Health Services. Sparks said that rule was vague, caused undue burden on women and had high potential for irreparable harm.

Throughout the five-day trial, a wave of patients, health providers, state agency officials, bioethicists, cemetery directors and religious leaders flowed through the witness stand.

Before dismissing attorneys Friday morning, Ezra rattled off a list of questions and concerns he wanted both sides to answer in his closing arguments, including: What authority does Texas have to pass laws around giving dignity to the unborn? What would happen to women’s access to care — for abortions and miscarriages — if health providers did not have a facility to handle fetal remains? And how many facilities — secular or otherwise — have committed to helping with burials and cremation?

Ezra noted that the case is unique because state attorneys waived the argument that SB 8 protects the health or safety of patients and plaintiff’s attorneys waived arguments about costs to patients and providers.

The dynamics involved “makes this case extremely unique in many ways and makes finding precedent all the more difficult because those issues are generally not only present in these kind of abortion-related cases — they’re often paramount in those cases,” Ezra said.

See here for the background. The judge’s questions, which the Observer examined in more detail, are the key to the case. During the trial, there was testimony by Blake Howard Norton, the daughter of State Rep. Donna Howard, about how she felt coerced by the Catholic hospital where she was going through a miscarriage into making a decision about disposing of the fetus, and there was more useless testimony from paid state witnesses who lacked any expertise in the subject matter and the law. I feel like the judge is skeptical of the law, but we’ll see what he has to say about it. The Chron has more.

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