Editorial: Texas anti-abortion forces now want fetuses to be buried or cremated

For years, Republican-controlled state legislatures have claimed to be protecting women’s health when they passed laws such as those requiring that abortion clinics be outfitted like surgical centers and that doctors obtain admitting privileges at nearby hospitals. But federal courts haven’t bought those disingenuous arguments. In fact, the U.S. Supreme Court last summer struck down a Texas law that included both of those requirements, declaring them to be unnecessary to keep women safe and an undue burden on access to legal abortions.

In response, Texas has become the most recent state to shift the focus of its antiabortion efforts from protecting the woman to humanizing the fetus. Texas Senate Bill 8, signed into law Tuesday by Republican Gov. Greg Abbott, is an omnibus of abortion restrictions, none of which even pretend to be about protecting women’s health. But several of the provisions clearly aim to conflate fetuses with babies in the eyes of the law, a move that is understandably threatening to supporters of abortion rights. The most obnoxious of these requires that fetal remains be given a “dignified disposition” by cremation, burial in a cemetery or a scattering of ashes. No longer can they be disposed of as medical waste.

The idea of portraying the fetus not as tissue but as an incipient human being has long been embraced by some abortion opponents, who have tried for years, with little success, to get “personhood” amendments passed. A Colorado ballot measure that would have deemed a fertilized egg to be a person was resoundingly rejected in 2008, for instance. Many states have passed “fetal homicide” laws. States have tried other stratagems as well to extend “rights” to fetuses, including prosecuting pregnant women who use drugs under child abuse statutes.

These campaigns are part of a long, slow process to undermine the very idea that an abortion can be morally acceptable. If a fetus is a person, they reason, then surely an abortion is murder.

But science and the courts simply don’t back up what abortion opponents so fervently preach. A fetus in the first and most of the second trimester cannot survive outside the uterus. In fact, under Roe vs. Wade, legal elective abortions are not performed on fetuses that are viable.

Texas has already been rebuked once by the courts for trying to require that fetal remains be buried or cremated. U.S. District Court Judge Sam Sparks enjoined that rule in January, calling it vague, likely to increase costs and logistical problems for healthcare providers, and likely to enhance the stigma surrounding abortion. (The state has filed an appeal.) Although the law that just passed attempts to fix some of those problems — by ordering up a registry of funeral homes and cemeteries that will provide free common burial, for example — it’s likely that Texas will end up in another court battle over various aspects of this new law, including the disposal of fetal remains.

Texas is one of half a dozen states that introduced legislation this year requiring burial or cremation of fetal remains. In 2016, Louisiana and Indiana passed laws on fetal remains, but the law in Louisiana is not in effect pending litigation and the Indiana law has been enjoined.

Despite all the emotionally loaded language about dignity and burials and “unborn” children threaded through these laws, fetal remains are not babies. And the Supreme Court has ruled in three key decisions that women have a constitutional right to a legal, safe abortion and a right to obtain it without having to scale burdensome barriers first. As the Texas court found, even having to bury fetal remains can be burdensome.

It’s not surprising that abortion foes would change strategies in the wake of the Supreme Court decision last summer. In fact, Sparks, the judge who blocked the Texas health department rule on fetal remains, noted tartly in his decision that Texas officials had proposed the new rule last summer before the ink on the Supreme Court decision was even dry.

These mawkish attempts to “dignify” aborted fetuses are just attempts to shame women who choose to have abortions and create new obstacles for the clinics that provide them. Once again, courts should stop these bad laws in their tracks.

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