Even before the U.S. Supreme Court overturned Texas’s abortion restrictions in a 5-3 vote in June, state politicians were already planning their response. In May, state Representative Byron Cook first wrote to the head of the Texas Health and Human Services Commission about “appalling” rules in the Department of State Health Services regarding the disposal of fetal remains from abortions and miscarriages. Cook called for them to be changed.
On July 1, Governor Greg Abbott quietly published the proposed new rules in the Texas Register, which started a 30-day period for public comment. The new rules would ban the disposal of fetal tissue remains in sanitary landfills and only allow for cremation or burial no matter the gestation period. This proposed rule change uses the agency’s rule-making authority to sidestep the typical legislative process, though Abbott hopes that lawmakers will convert the rules into law in the next year.
Abbott’s reason for amending the process? “Governor 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,” his office said in a statement.
And it seems the Health and Human Services Commission shares that sentiment. “The Health and Human Services Commission developed new rules to ensure Texas law maintains the highest standards of human dignity,” said commission spokesperson Bryan Black.
The rules change seems like another attempt to create hurdles for abortion providers, an intention made clearer in a fundraising email by Abbott that called for help to “turn the tides against the soulless abortion industry in Texas.” Although Abbott and the commission claim that they are concerned with the dignity of embryonic and fetal tissue, Texas medical professionals and funeral coordinators are concerned about the logistics and repercussions of this rule for the women and families directly affected by it. In late July, Jim Bates, the director of the Funeral Consumers Alliance of Texas, wrote to Allison Hughes, the rules coordinator for the Texas Department State Health Services, pointing out that the details of the rule changes are “incorrect and incomplete.”
The letter states that though the rule proposals say there will be no fiscal implications, burials and cremations cost money. When the basic charges for “professional services” from funeral homes are $2,000, that’s an extra cost for somebody. The rule changes don’t address that reality, so it’s not clear who would pay for it: the women seeking this medical procedure, health care facilities, or the government. Bates was also concerned that women who can’t pay for “deathcare service,” could face jail time, or that by being required to contact a funeral home, women are losing the right to privacy that should come with such a personal decision.
On August 1, the Texas Medical Association and the Texas Hospital Association sent a joint letter to Hughes that raised more pertinent questions that the rule changes failed to address. Would every abortion and miscarriage now require a death certificate and a funeral director? For women who have spontaneous miscarriages (about 10 to 15 percent of women who know they are pregnant), if it occurred at home or outside of a hospital or clinic, would they then be responsible for bringing the embryonic or fetal tissue to a doctor’s office or hospital for proper disposal?
Both letters, penned by professionals who have more experience with abortions, miscarriages, and end of life arrangements than Governor Abbott and other proponents of the rule changes, pointed out how little effort was put into seeking their input before the new guidelines were proposed. They also highlight another key element missing in the rule changes: the women this rule will affect. In the letter from the Funeral Consumer Alliance, Bates explains:
As a consumer advocacy group, FCA of Texas deals with interment and cremation on a daily basis. We are experienced with fetal disposition, and have talked to many women who have asked for support and guidance during this very emotional time. Excluding women from the development of this proposed rule is ethically negligent. It is noted that the words “woman” or “women” are not written anywhere in the proposed 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.
Another letter to Hughes from the Center for Reproductive Rights—which represented Texas clinics in the Whole Woman’s Health v. Hellerstedt case that overturned Texas’ abortion restrictions—called into question the basis for the rule changes, noting that there is no specific health or safety rationale. The letter repeatedly urges the commission to read up on the the Whole Woman’s Health v. Hellerstedt decision, stating that it “clarifies the legal standards for laws and regulations that restrict access to abortion.” They warned that these rule changes could lead to more lawsuits.
During the August 4 hearing on the rule changes at the Texas Department of State Health Services, medical professionals, funeral directors, reproductive rights advocates, and anti-choice activists voiced their opinions. As opponents reiterated their concerns about costs, undue burdens, and the stigmatization of abortion the rule changes could lead to, supporters voiced public safety concerns the agencies have yet to provide.
One supporter of the rule changes, Heidi Group CEO Carol Everett, had specific concerns about how the current disposal methods might have been affecting Texans. “What if the woman had HIV? What if she had a sexually transmitted disease? What if those germs went through and got into our water supply?” she asked at the hearing. (People don’t contract STDs through water supply.)
Addressing the concern of how women who have spontaneous miscarriages at home would be affected by the rule change, John Seago from the Texas Right to Life group suggested that those women be made an exception to the rule. But if the purpose of these rule changes, as its supporters have stated, is to give dignity to life they feel is undervalued, then how would that exclude cases where a miscarriage takes place at home? If all embryonic and fetal tissue life matters, then what does it matter where it was lost?
It’s telling that proponents of the rule changes have only talked of preserving the “dignity” of embryonic and fetal tissue while ignoring the real life dignity, privacy, and financial concerns of the Texas women this rule will affect the most. If the biggest health and safety concern supporters have is that the people might contract STDs through the water supply (which again, is not a real concern) there’s no valid reason for this “update” on rules that have been in place for 27 years. Thanks to ideology and sentiment, rather than real health or safety concerns, Texas women are once again facing a challenge to their reproductive rights.