Federal judge blocks Texas rule requiring abortion providers to bury and cremate fetal remains

(Reuters/Mike Stone/Files)Protesters rally in the rotunda of the State Capitol as the state Senate meets to consider legislation restricting abortion rights in Austin, Texas, in this file photo taken July 12, 2013.

A federal judge has temporarily blocked a provision in a Texas law that required abortion providers to bury or cremate the remains of aborted babies, saying the state has failed to show how the measure serves a public health purpose.

U.S. District Judge David Ezra in Texas stated in his Monday afternoon ruling that the arguments presented by the Department of State Health Services "lack merit" and also noted that the provision may violate constitutional due-process provisions.

"No health and safety purpose has been articulated despite (the regulation's) presence in the Texas Health and Safety Code," the judge wrote, according to Reuters.

The provision was part of Senate Bill 8, which was approved by the Republican-controlled legislature last year and was supposed to go into effect on Feb. 1.

Republican Attorney General Ken Paxton said that the law was aimed at honoring the dignity of the unborn and vowed that his office will continue to defend the measure in court to have the requirements enacted.

"My office will continue to fight to uphold the constitutionality of the new law, which simply prevents fetal remains from being treated as medical waste," Paxton said in a statement.

Critics have argued that the regulation would require the tissue to be treated differently than other human tissue and increase costs of abortions.

Ezra said that the attorneys for Center for Reproductive Rights, who are representing the plaintiffs, have been able to present evidence that the rule would infringe on women's right to abortion and that medical providers would have difficulties in complying with the rule, causing them to be fined.

Nancy Northup, president and CEO of the Center for Reproductive Rights, stated in a news release that Ezra's ruling "reaffirms that the courts will enforce the law and block burdensome restrictions on health care providers and the women they serve."

"The Center for Reproductive Rights has taken Texas to court before and won, and we'll take Texas to court again to challenge any laws that rob women of their constitutionally-protected rights," Northup added.

The provision in SB 8 has been Texas' second attempt to require abortion providers to bury or cremate fetal remains. In 2017, U.S. District Judge Sam Sparks stopped the Health and Human Services Commission from implementing a similar fetal burial rule, saying it caused an undue burden on women seeking abortions and had a high potential for irreparable harm.

In November, a federal judge struck down another provision in SB 8 that would have outlawed dilation and evacuation abortions unless the fetus is deceased.

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