Monday, July 23, 2018

Does the state have a valid interest in requiring the burial of fetal remains?

July 20, 2018 (My Statesman): Trial ends, but judge seeks more on fetal burial law, by Chuck Lindell:

Last week, a Texas district court concluded a 5-day trial considering the constitutionality of Texas' fetal burial law. The law requires that healthcare facilities bury or cremate fetal remains following an abortion, miscarriage, or treatment for ectopic pregnancy, regardless of the patient's beliefs or wishes. 

In January, Judge David Ezra preliminarily enjoined the law, finding that the Supreme Court has not recognized a state interest in showing respect for fetal remains as a permissible grounds to regulate abortion.  However,  at the close of this month's trial, Ezra stressed that he had not decided how he would rule and took the unusual step of asking the attorneys to submit additional briefs addressing specific questions prior to closing arguments in August.

One key question that Ezra asked the attorneys to address is whether the state has a valid interest in requiring that fetal remains be treated like a human body rather than medical waste.  This question carries new significance given Justice Kennedy's retirement from the Supreme Court.

Ezra also asked the attorneys to address the question of access.  He noted the practical obstacle that the law could impose on women's access to abortion if abortion facilities are forced to close because there are not enough businesses willing to dispose of fetal remains as well as the impact on women who seek medical care for miscarriages.

During the trial, the attorneys representing the plaintiffs also argued that the law improperly sought to impose stigma and shame on women by forcing them to treat fetal remains as a human body regardless of their views and religious beliefs.



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