Some States Are Trying To Force Women To Have Funerals For Fetuses

Meet the latest creative way to obstruct abortion access.
Some states are now moving to require that fetal tissue be cremated or buried.
Some states are now moving to require that fetal tissue be cremated or buried.
MANDEL NGAN via Getty Images

Abortion may be legal and constitutionally protected in the United States, but that hasn’t stopped various states from finding countless ways to restrict access. And the latest type of regulation to find favor among anti-choice legislators are laws requiring that fetal tissue be buried or cremated. Texas is now poised to quietly pass new regulations mandating that abortion clinics ― and women ― engage in a traditional mourning ritual.

Here’s what you need to know about fetal burial/cremation rules, and why they’re very bad news for reproductive rights in this country.

What they are:

“Since abortion clinics have been open and operating in the United States, there have been protocols in place for how to deal with the products of conception, or the fetus,” Elizabeth Nash, senior state issues manager with the Guttmacher Institute, a policy and research organization that focuses on reproductive rights, told The Huffington Post. “Typically, what has been required is that the products of conception be treated as any other tissue from the body. So, as medical waste.” There are nuances from state-to-state, she said, but for decades abortion providers have simply held contracts with medical waste service providers, who tend to incinerate fetal tissue.

In the last few years, however, several states ― like Indiana, home of staunchly anti-choice Republican vice presidential candidate Mike Pence ― have passed bills that say that all tissue from an abortion clinic must be cremated or buried. (Indiana’s law is not currently in effect, because it was blocked by a federal judge.) As The Atlantic reports, several other states, including South Carolina and Mississippi, have recently considered similar legislation. And in mid-September, the Texas Health and Human Services Commission, on behalf of the Department of State Health Services, rather quietly released a revised set of proposed rules mandating fetal burial and cremation. Following a mandatory open comment period, the rules could go into effect as early as this week or next, Blake Rocap, legislative counsel for NARAL Pro-Choice Texas, told The Huffington Post.

It's important to note that across the country, these laws have been challenged by lawsuits brought by groups like Planned Parenthood and the ACLU that have -- thus far -- prevented them from actually going into effect, and Rocap said he anticipated something similar will happen in Texas. But that likely won't stop states from trying to find backdoor ways to enact such rules.

How they affect women:

It’s challenging to fully capture the many ways in which these laws could hurt women, simply because there are so many questions about how they would actually work.

The Texas Medical Association and Texas Hospital Association recently sent a letter to the Texas Department of State Health Services that included questions like whether “incineration followed by internment” is actually a viable way to dispose of fetal tissue; whether it would require a death certificate (and whether that death certificate would be public); whether it meant a funeral director would need to be a part of the process and what women are supposed to do in, say, the case of a spontaneous miscarriage at home. Another biggie? Who pays for all of this. “The proposed rules are silent on the responsibility for the payment of these services,” the letter states, adding that the cost of cremation runs up to $4,000 and burial can cost up to $10,000. The Funeral Consumers Alliance of Texas also wrote a letter to the state questioning who would absorb the costs, and criticized the proposed rule for limiting women’s choices.

“All of these rules are of the same design, which is to complicate standard medical practice by overlaying other unnecessary requirements to make it so hard that women won’t be able to access abortion,” said Rocap, of NARAL Pro-Choice Texas, which is actively working against the rule. “And if they can, it will be outrageously expensive ― much more expensive than it should be.”

What the future holds:

Despite the fact that fetal cremation and burial rules are flawed and are being challenged in several states, Nash said they’ve really begun to pick up steam in the last two years ― particularly after the heavily edited (and discredited) “sting” Planned Parenthood videos that led to a congressional investigation. “In just a couple of years this issue has gone from an idea to a really fairly burdensome [form of] legislation and regulation,” Nash said. “It looks like this is what we’ll see as one of the priorities in state legislators next year.”

And Nash said fetal cremation and burial rules aren’t just about curbing women’s access to abortion by upping costs and forcing clinics to change the way they operate. They’re an attempt to create a shift in ideology and force society to adopt a specific attitude toward what fetal tissue is and isn’t.

“I think it’s an interesting move away from women’s health,” Nash said. “For many years ... abortion opponents were attempting to make the case that restrictions were necessary to protect women’s health, and this is a real shift from that. This isn’t about women’s health. This is about trying to change attitudes toward the fetus and products of conception in order to try and revisit abortion rights.”

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