Abortion Providers Sue to Stop Texas Rule Requiring Burial for Fetal Tissue

Texas is set to impose rule to require fetal and embryonic tissue to be buried.

— -- Abortion providers are challenging Texas in an effort to stop the state from implementing a rule that would require medical providers to bury or otherwise inter fetal and embryonic tissue from miscarriages or abortions.

The lawsuit is an effort to stop a new rule finalized by Texas Health and Human Services Commission that would have profound effects on medical providers, which provide care to women having an abortion or miscarriage. The rule requires that if a woman has a miscarriage or abortion at a medical provider, the embryonic or fetal tissue would have to be buried or otherwise interred. Cremation is allowed but ashes must still be interred and cannot be scattered or disposed of in a sanitary landfill, as is often the case under current guidelines.

The Texas Department of State Health Services told ABC News it had not yet officially been served with the lawsuit and was reviewing associated information.

"We are aware of the lawsuit and are reviewing the information, though we have not yet been officially served, and we will respond at the appropriate time," a spokeswoman for the Texas Health and Human Services Commission told ABC News.

The lawsuit alleges that the new rule set to be implemented on Dec. 19 is "unconstitutional" and could threaten "women's health and safety" with its stringent requirements.

Women who are having a miscarriage or an abortion in the home are exempt from burial or interment requirements. Additionally, a birth and death certificate will not be needed to dispose of tissue, a spokesman for the Texas Health and Human Services Commission told ABC News. It is up to medical providers to ensure the rule is followed, not patients.

The rule change was implemented to "protect public health in a manner that is consonant with the State's respect for life and dignity of the unborn," according to a preamble released by the Texas Health and Human Services Commission last month.

Amy Hagstrom-Miller, president and CEO of Whole Woman’s Health and lead plaintiff in the lawsuit, pointed out the new rule is scheduled to be implemented months after the organization won a case in the U.S. Supreme Court against the state of Texas to overturn the restrictive “HB2” law that led to many abortion-providing clinics shutting down throughout the state.

“Once again here we are with Texas making an end run game around the legislative process and trying to insert themselves in women's private decision making,” Hagstrom-Miller told ABC News.

The lawsuit also asserts the new regulation could “infringe on “patients’ rights to seek pregnancy-related medical care without undue interference from government and to the privacy of their confidential information,” has “no public health benefit," and places “burdens on women seeking pregnancy-related care.”

The lawsuit also says women’s “health and safety” could be compromised if fetal material must be buried or interred and cannot be sent to a pathological or crime lab for testing. Hagstrom-Miller said this testing, either to help with a sexual assault case or to help identify any genetic disorders after a miscarriage, may be stopped if a pathology lab or crime lab has no way to properly dispose of the material under new guidelines.

“Gov. Abbott believes human and fetal remains should not be treated like medical waste, and the proposed rule changes affirms the value and dignity of all life," a spokesman for the governor told ABC News earlier this month when the rule was finalized. "For the unborn, the mothers and the hospital and clinic staff, the governor believes it is imperative to establish higher standards that reflect our respect for the sanctity of life. Further, it is Gov. Abbott’s hope that the legislature will consider legislation next session to enshrine the new rules into state law.”