Less than one week after the Supreme Court ruled against two of Texas’ most restrictive policies regarding abortion access, the Department of State Health Services (DSHS) proposed a new rule on the State Register. DSHS did not announce the proposed rule change, and gave little notice.
Just what does this rule change do? It requires that aborted fetuses be cremated or buried. While this is certainly something new in Texas, it is not a new addition to the anti-abortion playbook. As a matter of fact, it comes right out of the model legislation written by Americans United for Life. By using the rule changing process through a state agency as opposed to attempting to pass a law through the legislature – which agencies are able to do to a certain extent – they can avoid legislative session altogether.
Not only does this reduce the procedural tools that are available for slowing and stopping laws, it also means that the rule change can go into effect before session even starts. This one is slated to be enforced in September.
Other states have either considered or passed legislation requiring the burial and cremation of fetal tissue, including Ohio, South Carolina, Mississippi, Arkansas and Georgia. Indiana included a cremation and/or burial requirement in a larger abortion restriction law which passed, but was struck down by a federal judge.
While the required analysis of the rule change by the Director of the department’s Health Care Quality Section found that “the public benefit anticipated as a result of adopting and enforcing these rules will be enhanced protection of the health and safety of the public,” a spokesperson for Governor Greg Abbott didn’t even bother with the pretense of public health. “Governor Abbott believes human and fetal remains should not be treated like medical waste,” she said in a statement, “and the proposed rule changes affirms the value and dignity of all life.”
That’s right – Governor Abbott has plainly stated that this rule change has nothing to do with protecting public safety, and everything to do with pushing a radical anti-abortion agenda through a rule changing process that is barely open to the public.
This rule change is an unacceptable attack on abortion care in Texas that erodes reproductive freedom in our state in multiple ways.
It moves our rules closer to a recognition of fetal personhood, which is a dangerous precedent to set before a legislative session full of anti-abortion lawmakers who are angry over the most recent Supreme Court decision. It places an additional burden on abortion providers, who will have to take on the task of coordinating with funeral homes and who will almost certainly have to shoulder the cost of the cremation or burial. It reinforces the stigma surrounding abortion care, which is the motivation for anti-abortion legislation in the first place.
Finally, and perhaps most insidiously, it takes a roundabout way to prohibit the donation of fetal tissue for scientific research.
Are you mad? You should be. By releasing the proposed rule change without an announcement, the state attempted to slide this incredibly inappropriate and offensive rule change past people in Texas only four days after the Supreme Court came down against the state for its unconstitutional restrictions on abortion care. The anti-abortion lawmakers who run this state are angry that they lost, and using their significant power to push through restrictions any way they can.
Though there are too few avenues to stop the implementation of this rule, every person in Texas has an opportunity to let DSHS know exactly what we think of this dirty trick. They will accept comments on the proposed change until the end of the month.
Here are the instructions for leaving your comment, as per the State Register:
Comments on the proposal may be submitted to Allison Hughes, Health Facilities Rules Coordinator, Health Care Quality Section, Division of Regulatory Services, Department of State Health Services, Mail Code 2822, P.O. Box 149347, Austin, Texas 78714-9347, (512) 834-6775 or by email to email@example.com. Please specify “Comments on special waste from health care-related facilities” in the subject line.