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Senate Republicans Push ‘Fetal Burial’ Law to Impose New Burden on Abortion Providers

Erin Heger

Anti-choice lawmakers in state legislatures have for years used fetal remains burial laws to create barriers and add costs to abortion care.

Republicans in the U.S. Senate are using an isolated case to push for new federal regulations of  medical waste disposal, forcing health-care providers to bury or cremate fetal tissue after abortions.

Last month, authorities found 2,246 fetal remains at the home of deceased Indiana abortion provider, Ulrich Klopfer. Klopfer, who died September 3, had operated three clinics in South Bend, Gary, and Fort Wayne before his medical license was suspended in 2016. It is not yet known why Klopfer kept the remains, and his family is cooperating with the investigation.

In response to the Klopfer case, Sens. Todd Young (R-IN) and Mike Braun (R-IN) filed legislation that would require abortion providers nationwide to bury or cremate fetal remains, or face up to five years in prison. The “Dignity for Aborted Children Act” would also require providers to distribute forms giving patients the option of retaining possession of the fetal tissue. Failure to do so could result in a civil penalty.

The bill is modeled after a 2016 Indiana law signed by then-Gov. Mike Pence (R) that requires fetal remains be buried or cremated instead of disposed as medical waste. The anti-choice measure was upheld in May by the U.S Supreme Court. Braun, who won his Senate seat in 2018 by pledging to oppose abortion rights even more fiercely than incumbent Sen. Joe Donnelly (D-IN), voted for the state’s fetal remains burial law when he served in the Indiana House of Representatives, the Indianapolis Star reported.

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Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health—an abortion clinic in Indiana that has fought state lawmakers’ abortion restrictions—said fetal burial laws target “providers as somehow needing extra and additional rules or regulations that do not apply to others in similar situations, such as miscarriage, stillbirth, other pregnancy-related situations.” 

“This amplifies the notion that abortion is outside of normal, mainstream medical practices,” Miller said.
Cremation and burial are more expensive than incineration, the most common practice for disposal of human tissue in hospitals and outpatient settings, Miller said. Requiring burial or cremation opens the door to more regulatory pressure for both abortion providers and vendors with which they contract.
“To require cremation or burial will add costs, but it also adds another potential arena for regulatory interference, and that to me is the secondary behind-the-scenes objective of the anti-abortion folks with this trend in legislation,” Miller said. “They couch it in concern for the embryo, but in essence it is actually another tactical barrier and backdoor way to shutter access and potentially close clinics, without overturning Roe.”

Abortion rights proponents say such requirements could make abortion more costly for patients and stigmatize the procedure. A 2017 Rewire.News investigation found requiring cremation or burial of fetal remains creates additional distress for patients.”Laws like Indiana’s are part of a nationwide strategy to stigmatize abortion and push it out of reach,” Jennifer Davlin, director of the ACLU Reproductive Freedom Project, told ABC News in May. Anti-choice organizations and lawmakers were quick to seize upon the Klopfer case to advocate for further abortion restrictions. Americans United for Life (AUL) distributed talking points soon after the discovery in Klopfer’s home, urging abortion rights foes to connect the Klopfer situation to the recent repeal of abortion restrictions in some state legislatures.

Abortion is already heavily regulated, with many states going far beyond what is necessary to ensure safety, such as imposing licensing standards equivalent to those of ambulatory surgical centers and specifying the size of procedure rooms and corridor width, according to the Guttmacher Institute. Abortion is one of the safest medical procedures, with major complications occurring in less than a quarter of 1 percent of cases—about the same frequency as colonoscopies.

A Federal judge blocked a similar Texas regulation in 2017, writing in his decision that the rules constituted an “undue burden” on access to abortion care. The Texas legislature then passed a law with similar restrictions; it was again blocked by a federal judge, and is now before the Fifth Circuit Court of Appeals. The requirement to bury or cremate fetal remains could have added an estimated $2,000 to the cost of abortion care, according to the Funeral Consumers Alliance of Texas.

“It seems unlikely [the] professed purpose is a valid state interest and not a pretext for restricting abortion access,” U.S. District Judge Sam Sparks wrote in the 2017 decision. “By comparison, Plaintiffs face likely constitutional violations, which could severely limit abortion access in Texas.”

Similar laws in Arkansas and Louisiana have been blocked by federal courts, and lawmakers in Ohio, Mississippi, and South Carolina have considered similar regulations in recent years.

“These regulations do nothing to protect public health while imposing new burdens and uncertainty on health care providers and the diverse communities they serve,” Nancy Northrup, CEO of the Center for Reproductive Rights, said in a statement after the Texas GOP’s fetal burial rule was first blocked by the courts in 2017.

UPDATE: This piece has been updated to add comments from Amy Hagstrom Miller.

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