In 2017, the Republican-controlled Texas legislature passed a law requiring hospitals and abortion clinics to arrange for the burial or cremation of fetal remains. The law was set to take effect next February, and would have required these funerary rights regardless of the patient’s personal wishes or beliefs, and regardless of whether the pregnancy ended in an abortion or a miscarriage.
Last week, U.S. District Judge David A. Ezra issued a permanent injunction against the law.
The law is designed to shame women who get abortions, plain and simple. The Texas legislature has concocted some concern about preventing the remains from winding up in “landfills,” but they give up the game when they say this:
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The Texas attorney general, Ken Paxton, whose office defended the law in court, said in a statement that the law was focused on preventing health care facilities from disposing of fetal remains in sewers or landfills. Mr. Paxton and other supporters of the law have cast it as an issue involving “the humane disposition of fetal remains.”
“Humane” disposition telegraphs the value judgment Texas is making here, over the rights and beliefs of “human women.”
But how long can laws like this really be stopped? Texas has indicated that it will appeal the ruling. Trump has been packing the federal appellate courts with hard-right judges. He’s trying to pack the Supreme Court right now. If people like Brett Kavanaugh are confirmed, you can expect these kinds of laws to receive Supreme Court protection, even if Roe isn’t specifically “overturned.”
The fetal burial law is a perfect example of an “extreme” law that can pass a rabid legislature, but should be struck down by a court. Trump and the Federalist Society want to bring the courts down into the muck so that they are indistinguishable from the Texas legislature.
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If they win this battle, it’s why court-packing has to be on the table when the wheel comes back around.
Texas Fetal Burial Law Struck Down in Another Blow to Abortion Restrictions [New York Times]
Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.