Fetal Burial law presents misplaced, ideological stand against federal courts

Liza Anderson

At the end of its last legislative session, the Texas Legislature passed Senate Bill 8 and severely restricted abortions within the state. Contained within the law, Section 697.003 mandates that fetal tissue be disposed of in one of two ways: cremation or burial.

This so-called fetal burial law presents an insurmountable legal obstacle for the state and reflects its disdain for federal legislation.

The fetal burial provision of SB8 originated with a Texas Health and Human Services mandate from last year. Designed to “protect the dignity of the unborn,” the rule was quickly challenged in federal courts and struck down by Judge Sam Sparks on the pretense that the mandate presented an “undue burden” for women within the state. Within days of filing an appeal on behalf of the provision, Gov. Greg Abbott signed SB8 into law, in open defiance of the federal court’s ruling.

Speculators say that the law will increase the cost of obtaining an abortion by $2,000, and funeral homes and abortion providers express concern about the negative consequences of the increased costs.

In 2016, the Supreme Court ruled in Whole Woman’s Health v. Hellerstedt that abortion restrictions must be designed to promote public health. Rulings like this stand as an inevitable obstacle to such blatantly partisan legislation as SB8. SB8’s fetal burial provision does nothing for public health, and many say that a loophole for at-home abortions and miscarriages could deter women from seeking medical treatment and risk incurring greater cost.

Despite the bill’s intent to express the state’s “profound respect for the life of the unborn,” the heightened cost blatantly disregards federal regulations on abortion. In an attempt to remedy this dissonance, the deputy commissioner for the HHS stated that she envisioned fetal mass graves — the only way to adhere to the law’s regulation and avoiding unconstitutional cost increases.

By increasing the cost and consequence of abortion and miscarriage within the state, the Texas Legislature has sought to restrict access to the former.

In seeming acceptance of its unconstitutionality, the law includes several provisions detailing what happens to the bill should parts of it be struck down. Specifically, all parts of the bill that are not deliberately found to be constitutionally “vague” shall be “severed and remain in force.”

SB8’s fetal burial provision presents a deliberate disdain for the ruling of federal courts. The law differs only slightly from the rule found unconstitutional months ago and is likely to face the same challenges.

The law ignores the actual causes of abortion within the state and targets health care providers — like Planned Parenthood — whose services and sexual education would limit the need for abortions within the state.  

Rather than target specific causes of abortions to actually reduce abortions, the Legislature has chosen to make an ideological stand against federal courts. Texas has initiated a legal fight it can’t win, and the consequences will be suffered by its residents.

The Legislature has once more prioritized partisan stands above actual progress, and the results will be an expensive, futile court battle and reduced well being among women within the state.

Liza is a Plan II and History sophomore from Houston.