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Texas Will Force You to Hold a Tiny, Expensive Funeral for Your Miscarriage

Fetal burial law is cruel and wasteful


When the U.S. Supreme Court overturned Texas’s restrictive new abortion laws in July 2016, pro-choice advocates celebrated a major victory. But state Republicans were ready for the setback and had another plan in the works.

Just four days later, right before a holiday weekend and without fanfare, Texas’s Health And Human Services Commission proposed a new rule. Every abortion — or even miscarriage — that happens in a medical setting must be buried or cremated.

Every single one, regardless of age of gestation, without the ability to opt out on the woman’s part.

Starting on Dec. 19, 2016, the tens of thousands of Texas women who miscarry or have an abortion every year in hospitals or clinics will soon get a choice … for their fetus. Interment, incineration followed by interment or steam disinfection followed by interment. Full stop.

Why? There are no unique health or safety concerns about fetal tissue. Under current law clinics and hospitals handle embryonic and stem cell tissue like all other human tissue. Advocates of the new regulations say this is precisely the point:

“Governor [Greg] Abbott believes human and fetal remains should not be treated like medical waste, and the proposed rule changes affirms the value and dignity of all life,” HHSC spokeswoman Carrie Williams said, clarifying the motivations of the state-mandated mourning rituals.

Fetal remains should not be “treated like medical waste and disposed of in landfills.” Abbot himself said in a fundraising email he sent last July, not long after the rules surfaced.

It raises so many questions. After the rule was initially proposed, Austin state representative Donna Howard released a letter publicly questioning the specifics of the plan.

She put forth five pages of extremely specific questions about how the rules would actually work, but received about a page of vague politicking in return. “The health commissioner did not specifically answer most of Howard’s questions,” Texas Tribune stated more diplomatically.

“The rules currently contain heinous language related to ‘grinding’ of unborn baby parts, and ‘discharging’ them into a ‘sewer system,’” executive commissioner Charles Smith said in his response. “I charged DSHS to determine how this language could … better preserve the dignity of these unborn lives … This effort will better protect the dignity of human life … and the best interests of the public health of Texas.”

Why is it more respectful to burn up a fetus with flame until it is ashes? How does putting that bundle of cells in a fancy box in the ground to decompose and be eaten by bugs demonstrate a respect and value far greater than if it was disposed of safely and cleanly with medical waste?

Even more importantly, why is the state’s Health and Human Services Commission mandating what citizens are to “value”? What happens if a woman’s deeply held religious beliefs are directly contradicted by this forced grieving ritual?

“We were really appalled that Texas seems to be thumbing its nose at the Supreme Court,” said Trisha Trigilio, staff attorney for the ACLU of Texas. “The court’s decision was really clear, that restricting access to abortion premised on so called health and safety laws would not work. And Texas lawmakers seemed to be saying that they didn’t care much what the Supreme Court had to say, since they tried to pass a very similar law just four days later.”

Notice the wording in the regulation, in the statements and releases from those working to shame and restrict access. One side is saying “heinous,” “grinding” and “unborn babies,” and one side is saying, well, “choice” and “fetuses.” But that’s an obvious divide. The really important difference is, one side is saying “women” — and one side isn’t.

That’s not a metaphor. The words “woman” and “women” appear nowhere in the regulation. And although there have been two public comment periods and two hours-long hearings and Texans submitted more than 35,000 comments, the rule changes were enacted as originally written.

“By leaving out the word ‘women’ from the rule, it can be inferred that the woman’s stake in this issue has been excluded from a rule that directly affects her emotional, spiritual and financial security,” Jim Bates, the executive director of the Funeral Consumers Alliance of Texas, said in a statement. “Excluding women from the development of this proposed rule is ethically negligent.”

“This rule change looks like it will force women into a narrower set of emotional and financial choices, with no added benefit to the woman,” Bates continued. “This is a forced invasion of privacy with no apparent regard for the woman.”

“The bill is part of a wider strategy of what I would call coerced emotionalism, where the requirements are designed to make abortions harder to afford but through mechanisms that are meant to elicit feelings of shame and maternalism on the part of the woman seeking an abortion,” explained Claire McKinney, a Texas native who is now assistant professor of government and gender, sexuality and women’s studies at the College of William & Mary.

“The ultrasound bill Texas made into law in 2012 was premised on the same idea,” McKinney said. “If women seeking abortion are made to treat the fetus as a human life, then there is a hope that they will have an emotional conversion that will make them recognize the moral error of their ways. This bill is an effort at shame dressed in the guise of compassion and ethics.”

“The problem, of course, is that the individual women will not feel shamed, but it will continue to produce a social discourse where everyone else is justified in shaming women for reproductive choices.”

Texans protest an anti-abortion bill at the state house in Austin in 2013. Flickr photo

It’s not a secret, either. Remember those highly-edited undercover videos that anti-choice activists swear prove that Planned Parenthood is an evil abortion mill that sells baby parts to the highest bidder? The guy behind those videos, David Daleiden, was discussing fetal disposal as a political tool for the right as far back as July 2015.

In an article in The Guardian, Daleiden said that proposed laws requiring death certificates for fetuses could create “bottlenecks” for clinics and pressure them to close. He said that fetal tissue disposal was the ‘Achilles heel’ of abortion clinics.

“From a legislative perspective I think the most impactful [measure] could be disposal. Laws requiring that human fetuses receive death certificates — that creates a huge bottleneck for them. That makes it difficult for the clinics to work.”

Americans United for Life has already drafted sample legislation that would require medical examiners to issue death certificates for “each fetal death after delivery, miscarriage or abortion.” A stillborn child would need a state-issued “certificate of birth resulting in stillbirth.”

But that’s not where Texas is … yet. The Texas regulation did state that birth and death certificates wouldn’t be required for “proper disposition” under the rules. The new regulations “only” cover women who have an abortion or miscarriage in a healthcare facility, at any time during the fetus’s period of gestation.

While anti-abortion activists are railing loudly against the horrors of the sanitary disposal of a fetus at a clinic, they’re silent about the huge proportion of miscarriages and abortions that happen at home, early in the pregnancy, and are usually flushed away. The Mayo Clinic reported that a minimum of 10 to 20 percent of pregnancies result in miscarriages.

Texas isn’t the only state to attempt this type of regulation. Similar rules are already in effect in states such as Arkansas, Georgia and Ohio. In Vice Pres. Mike Pence’s Indiana, a temporary injunction is keeping a similar law — which also bans the option of terminating a pregnancy due to genetic abnormalities — on pause.

Melanie in Ohio when she was forced to confront this issue, at only nine weeks along. She had an ectopic pregnancy — which can be life-threatening — and was rushed to the hospital.

“I had to fill out a form about ‘disposal of human remains,’ asking if I wanted the tissue to bury or cremate,” Melanie said. “I was so completely in shock and in so much pain, I hadn’t even thought of it as a person. They said they were required to talk me through the form and it was simple — just check a box — but it hit me like a Mack truck.”

“I found out two weeks later that it wasn’t even a fetus,” Melanie continued. “There’d been a chromosomal abnormality, but for those two weeks I didn’t know. I felt horribly guilty for not having been heartbroken for ‘it’ sooner. That form was the hardest part of that day, which is really saying something — them insisting on calling it a person and making me choose what they did with it.”

So what does this rule change, which goes into effect on Dec. 19, 2016, mean for Texas women? Good question! We know that the bill requires cremation or interment after an abortion or miscarriage that occurs in a clinic, hospital or medical setting.

Flickr photo

But who pays? Medical providers — including the Texas Medical Association and the Texas Hospital Association — have publicly asked who would be responsible for the cost of these new services. State health officials responded that health care facilities — and not patients — will be responsible for the disposal of fetal remains and that other costs would be “offset by the elimination of some current methods of disposition.”

Where are health care facilities to get this funding? Nobody knows! But it has to come from somewhere … and if the funeral business gets involved, odds are it’s going to cost a lot.

Michael Land, a funeral home director and spokesman for the Texas Funeral Directors Association, said that the state’s assertion that “costs would be offset by the elimination of the cost of landfill disposition” was “unrealistic” and that the costs associated with compliance are likely a “higher dollar amount than what they’re projecting.”

Close reading of the regulation shows that the language doesn’t just tend towards redefining a fetus as a baby — it also uses “funeral business” language like “inter” and “cremate.” Average estimates range from $700 to $4,000 for cremation and from $7,000 to $10,000 for a traditional funeral.

That may not be a coincidence. Bates alleges that the funeral business has paid more than $200,000 over the past 18 months to the governor and Texas Republican caucus and been closely involved in these regulations. But there may be an issue with the way their governing statute defines a “dead human body,” as someone with a birth certificate and a death certificate.

The Funeral Consumers Alliance of Texas now plans to take to court any funeral business that gets involved in fetal disposition.

Of course, this is just one of many, many legal challenges that will ultimately result from this regulation. Lawyers at the Center for Reproductive Rights argued in a public letter that the rules “will almost certainly trigger costly litigation.”

The Texas Medical Association and the Texas Hospital Association, which represents 450 hospitals across the state, released a public comment repeatedly asking whether the state had studied the feasibility of different aspects of the plan and asking for clarifications on points like spontaneous miscarriages, ectopic pregnancies and molar pregnancies, which usually have no chance at viability.

Assuming that the regulations stand, the non-partisan FCA thinks the best option is to empower women to bury their fetuses where and how they wish, as with a home burial. Bates also pointed out that counties already have to have facilities and processes set up to cremate indigent citizens who die, so it doesn’t necessarily have to add much cost. Necessarily.

In fact, that’s the state’s response to the outcry of funeral directors. “The rules don’t require that ‘these processes’ go through funeral homes,” FCA spokeswoman Carrie Williams said. “[Funeral homes] don’t have a mandatory role.”

Of course, according to the new rules, incineration of fetal remains must be followed by interment. State health officials define interment as the “disposition of pathological waste using the process of cremation, entombment, burial or placement in a niche or by using the process of cremation followed by placement of the ashes in a niche, grave or scattering of ashes as authorized by law.”

Someone will have to pay for that. Will pro-lifers be funding this with donations?

“This is what happens when we place these non-medical requirements onto the practice of medicine,” said Blake Rocap, the legislative counsel for NARAL Pro-Choice Texas. “While there are definitions to these things, they’re so far from current medical practice that here are real questions about how to comply when you mash together science, modern medicine, public health and semi-religious ritual, which is what they’ve done. They’ve added this layer of forced cultural ritual on top of medicine, which is inappropriate.”

Anti-abortion advocates are celebrating this rule change, but they’re also looking a few moves ahead. There’s currently a bill in the legislature very similar to these regulations waiting for the January 2017 legislative session to begin. Right now, Texas forbids abortion after 20 weeks, with exceptions for the health of the mother and in the event the child is severely disabled.

Emily Horne, Senior Legislative Associate for Texas Right to Life, told evangelical Catholic website Church Militant that when the Texas legislature goes into session in January, removing those two loopholes will be Texas Right to Life’s next order of business.

Read those two sentences again. They want to close the loophole that would protect a woman’s choice to not be killed by what’s growing inside her. The current regulatory change is bleak enough that Bates actually had to write that “it would be cruel to put a woman in jail for not paying for a deathcare service forced upon her by the state if local government or she will not pay the cost of services.”

A study in the September 2016 issue of the journal Obstetrics and Gynecology found that Texas’s maternal mortality rate has nearly doubled in the last two years, which have coincidentally seen extreme restrictions on abortion. In fact, as The Guardian observed, “the report singled out Texas for special concern, saying the doubling of mortality rates in a two-year period was hard to explain ‘in the absence of war, natural disaster or severe economic upheaval.’”

“It’s important to note that these new regulations apply from the earlier moment of pregnancy, so we can be talking about providing a burial for an embryo,” the ACLU’s Trigilio said. “I think we should be demanding that our lawmakers focus on the actual health and safety concerns Texas women have right now. We have ACTUAL problems we could be focusing on, by encouraging funding for family planning services and supporting women and their families, instead of these absurd laws that will require women to bury their embryos.”

The new regulations were announced on Monday, the same day that the Health and Human Services Commission announced they were slashing funding to the Early Childhood Intervention program, a state service that provides free or discounted therapy for babies and toddlers with developmental disabilities, such as speech issues, Down’s syndrome and autism.

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