The Fifth Circuit Court of Appeals will hear arguments Thursday in yet another abortion rights case. This time, it involves a challenge to a Texas law requiring the burial or cremation of fetal and embryonic tissue from most failed pregnancies.
A federal judge blocked enforcement of the requirements in January 2017, then again a year later, then one more time for good measure. Even in the conservative Fifth Circuit Court of Appeals, a reversal of these decisions should be a long shot. But in May of this year, the Roberts Court allowed similar requirements in Indiana to take effect. The legal claims in Texas don’t mirror those in Indiana: Texas’ law actually reaches further, by including embryonic remains. But that May decision may be just the opening the Fifth Circuit needs.
Fetal and embryonic burial requirements like the ones at issue in Texas became very popular among anti-choice activists and lawmakers following the release in 2017 of a series of heavily edited videos by the advocacy organization Center for Medical Progress (CMP). The videos falsely purported to show Planned Parenthood staff members illegally selling fetal tissue. CMP’s founder David Daleiden is currently on trial for 15 counts of felony invasion of privacy related to his role in producing, filming, and distributing the videos. Multiple investigations also cleared Planned Parenthood of any wrongdoing. Still, in addition to Texas and Indiana, states like Arkansas, Louisiana, and North Carolina all passed measures requiring fetal and embryonic remains to be buried or cremated—treated, in other words, the same way as the remains of born children. The intent of these laws is crystal clear: to help advance fetal “personhood” across the the country, even incrementally, as a way to recriminalize abortion.
And unfortunately, anti-choice advocates are gaining ground.
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The Texas law requires most fetal or embryonic tissue to be buried or cremated regardless of the patient’s wishes or religious beliefs. Attorneys defending the Texas requirements call them “dignity-affirming protections” and insist they are a constitutional exercise of the state’s interest in “respecting the dignity of unborn life.” As one expert witness in the Texas trial testified, there has never been medical, religious, legal, or political consensus on the issue of when life begins, and laws like these are clear attempts to force resolution on an issue that is ultimately unresolvable.
Attorneys on behalf of three abortion clinics, one health center, two physicians, and a health-care management company all challenging the requirements say that Texas is forcing a particular belief on patients: that embryos and fetuses are the same as born children. The plaintiffs claim there is a stigma attached to those who do not believe that a miscarried embryo should be treated the same way as the remains of a born person. After a five-day trial in 2018, in which witness after witness described that very shame and stigma, U.S. District Judge David Ezra ruled the law created “substantial obstacles” for people seeking abortion services and abortion clinics while providing “absolutely no health benefit in return,” declared the law an undue burden, and blocked it.
It appears the plaintiffs’ arguments have struck a nerve. You can practically hear the sneer from the attorneys for the state of Texas in their brief to the Fifth Circuit demanding Judge Ezra’s decisions be reversed. “The other ‘burden’ identified by the district court was one of shame and stigma imposed by the State’s decision that fetal life deserves respect, which the court concluded burdens a patient’s beliefs,” the brief states.
“Should the Court recognize this type of burden, the Court would undoubtedly see challenges to established Supreme Court precedent regarding 24-hour waiting periods, informed-consent laws, and the refusal to pay for elective abortions, as those decisions reflect the State’s value of unborn life,” the brief continues.
And this is what attorneys for the state of Texas, and presumably their allies in the anti-choice movement who are watching this case closely, most fear: inadvertently creating a new tool for abortion rights advocates to challenge restrictions. That is precisely what happened in the 2016 Whole Woman’s Health v. Hellerstedt Supreme Court decision. Before that ruling, anti-choice advocates had gone haywire passing restrictions that devastated abortion access in the state. The Supreme Court ultimately struck those restrictions as unconstitutional. In doing so, it opened a pathway for advocates to challenge other abortion-rights restrictions passed in the name of patient safety but designed to simply close abortion clinics.
In this case, the district court’s rulings against the embryonic and fetal remains requirement indicated a possible new tool to challenge restrictions passed in the name of advancing fetal life. That is true even with a conservative Fifth Circuit Court of Appeals. After all, the Roberts Court in Whole Woman’s Health reversed the Fifth Circuit in order to find the Texas restrictions unconstitutional.
But now? A similar outcome in the challenge to Texas’ disposal requirements is not nearly as certain. May’s per curium opinion upholding Indiana’s fetal burial requirements did not address whether they were an undue burden on abortion rights. The opinion instead focused on the reasonableness of Indiana’s interest in regulating fetal remains. It’s possible that a different challenge, with a more developed record—like the fight happening in Texas—could produce a decision finding such restrictions unduly burdensome. But it is just hard to imagine the conservative majority on the Roberts Court coming to that conclusion. That Indiana law did, after all, equate a fetus with a born person in much the same way Texas is doing.
The Fifth Circuit isn’t expected to release a ruling in the case for several months. An appeal of that decision to the Supreme Court, no matter the outcome, is all but certain.