If there is one word that can be safely applied to the anti-abortion lawmakers in Texas, it is “stubborn.”
Today, just a month after a federal judge in Austin blocked a new state health department rule that would require women to bury aborted or miscarried fetal tissue, lawmakers in the Texas House State Affairs Committee held an hourslong hearing considering a bill that seeks to do exactly that.
The point of the measure is to honor the “dignity of the deceased” and nothing more, said the bill’s sponsor, Republican Rep. Byron Cook. “Let me be clear: This bill has nothing to do with the abortion procedure whatsoever.”
Of course, the bill does directly impact the provision of abortion and women seeking such care, as noted by Judge Sam Sparks in a strongly worded January 27 order blocking the Department of Health Services rule. While state lawyers have argued that U.S. Supreme Court precedent protects Texas’s ability to pass a measure that demonstrates its interest in “potential life,” Sparks wrote that desire couldn’t justify a rule that relates to the disposal of aborted or miscarried tissue, an activity that occurs “when there is no potential life to protect.”
And Sparks derided the state’s suggestion that imposing a new cremation and burial scheme on health care providers wouldn’t lead to additional costs for patients — which could burden a woman’s ability to access safe and legal abortion — and concluded that the rule read more like a “pretext for restriction abortion access,” and less like a measure designed to honor fetal dignity.
During the Wednesday hearing on Cook’s bill, a lawyer for the state attorney general scoffed at Sparks’s ruling, noting that it has already been appealed to the 5th Circuit Court of Appeals — a notoriously conservative panel that often signs off on Texas’s draconian restrictions on reproductive autonomy, regardless of whether those restrictions are constitutional.
Nonetheless, concerns about the measure persist. While the bill is clearly intended to attack abortion providers, Dr. Kimberly Carter, representing the Texas Medical Association and the Texas Association of Obstetricians and Gynecologists, said there is concern about how the law would apply to women who seek miscarriage care at individual physician offices, at community health centers, or at birthing centers, among other places. Given that 20 to 25 percent of pregnancies end in miscarriage, that is hardly of little concern. She also noted that fetal tissue after miscarriage is often transported to a pathology lab for testing (as aborted remains are at times transported to crime labs when allegations of sexual assault have been made) and said that the pathology labs are “definitely not ready” to have to comply with a fetal burial law.
Still, many of the abortion foes who regularly testify in favor of such measures at the Texas Capitol did not appear to concern themselves with such practical matters and instead congratulated the committee for its commitment to addressing what one supporter called a “critical issue.”
“The bodies of victims of abortion should never be treated like medical waste,” said Joe Pojman, executive director of the Texas Alliance for Life.
Cook’s bill is by no means the only pending measure seeking to restrict access to abortion — nor is it the most extreme. Indeed, the hearing on Cook’s bill started to come off the rails mid-afternoon when a series of hard-line anti-abortion activists testified against the measure as not going far enough.
Members of Abolish Abortion Texas, who have rallied around a measure that would criminalize abortion in the state, railed against Cook’s burial measure as not being sufficiently pro-life: How could lawmakers say that burying fetal remains offers dignity while still allowing the “murder of unborn babies,” many asked. And they took exception to the fact that Cook, who is also chair of the State Affairs Committee, would call up his own bill while as yet failing to schedule the criminalization bill for such a hearing. Not used to being the target of such pro-life animus, for much of the hearing Cook sounded perturbed by the turn of events.
The criminalization measure filed by North Texas Rep. Tony Tinderholt defines life as beginning at fertilization and would require the enforcement of the state’s murder statutes against both doctors and women seeking care — despite the fact that doing so would violate constitutional protections. “Rep. Tinderholt would tell you Texans can decide, and the Legislature can decide if every human should be protected,” Tinderholt spokesman Luke Macias told the Austin Chronicle. “We shouldn’t have to ask permission from any court system along the way.”