Judge Ezra Strikes Down Texas Law Regarding Disposal of Embryonic and Fetal Tissue Remains

September 6, 2018

On September 5, 2018, U.S. District Judge David Alan Ezra issued a permanent injunction blocking Senate Bill 8 (passed in 2017) from going into effect. Senate Bill 8 would prohibit health care providers from disposing of fetal remains in the same manner as other medical waste. Specifically, under SB 8 healthcare facilities such as hospitals would be required to bury or cremate any fetal remains, regardless of the period of gestation and even in instances of miscarriages or ectopic pregnancies.

The Texas Senate enacted this bill after U.S. District Judge Sam Sparks entered a preliminary injunction prohibiting implementation of a similar rule adopted by the Texas Department of State Health Services.

The July 2018 trial in this matter garnered significant attention from a broad spectrum of interested parties, including but not limited to, health care providers, state agency officials, and religious leaders. Stakeholders have asserted a wide array of arguments in opposition to SB 8 including the potential for the disregard of a patient’s personal wishes or religious beliefs, and the unknown implications for health care providers who are unable to meet the fetal tissue cremation or interment requirements. Supporters of the law have stressed that the Bill ensures fetal remains will be disposed of in a humane way.

In a 53-page opinion, Judge Ezra raised a number of concerns with both the practical challenges associated with implementation of the law—i.e. requiring the state to reach out to private cemeteries to assist with disposing of fetal remains—as well as the constitutionality of the law itself. In sum, the Court concluded that the challenged law violates the Due Process Clause of the Fourteenth Amendment given that it “do[es] not confer benefits sufficient to justify the heavy burdens on pregnancy-related medical care, particularly abortion care, that [it] impose[s].” Further, the Court found that the law also violates the Equal Protection Clause due to its disparate treatment of healthcare facilities and IVF clinics.

Texas Attorney General Ken Paxton said in a press release issued yesterday that: “Today’s ruling is disappointing, but I remain confident the courts will ultimately uphold the Texas law, which honors the dignity of the unborn and prevents fetal remains from being treated as medical waste.”