The coming months could bring a resurgence of bills mandating burial or cremation of fetal tissue, a requirement that advocates say would increase costs for patients, burden providers, and shut down clinics.
Since 2016, lawmakers in four states have passed laws regulating the disposal of fetal remains; three are blocked by the courts. In May, the U.S. Supreme Court upheld Indiana’s fetal burial law, signed in 2016 by then-Gov. Mike Pence (R) and requiring fetal remains be buried or cremated instead of disposed as medical waste.
In 2019, Republican lawmakers in three states—Pennsylvania, Ohio and Wisconsin—introduced legislation relating to the disposal of fetal tissue. The Court’s recent ruling on Indiana’s fetal burial law could encourage more anti-choice lawmakers to consider similar measures, said Elizabeth Nash, senior state issues manager for the Guttmacher Institute.
“Whenever there’s a court decision, abortion opponents look into it, and then plan their next steps,” Nash told Rewire.News. “We could see more [fetal burial bills] in 2020 if abortion opponents see this as a way to return to trying to close clinics.”
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These anti-choice regulations are onerous for providers, Nash said. Not only are burial and cremation more expensive than incineration—the most common practice for medical disposal of human tissue—but the requirement puts the burden on providers to find and contract with new vendors, who may be pressured by anti-choice forces not to work with clinics.
“Contracting with vendors can be very difficult for clinics because those vendors are pressured to step away from the contract,” Nash said. “So you’re asking clinics to enter into potentially new relationships when we know abortion opponents pressure vendors into breaking contracts.”
Requiring providers to arrange for burial or cremation of fetal tissue also creates regulatory pressure on clinics
, subjecting them to more inspection and bureaucratic requirements. If the clinics can’t comply, regulatory agencies have more reason to revoke their licenses or shut them down.
Lawmakers in several GOP-majority legislatures have considered fetal burial bills in recent years as abortion rights opponents shifted away from a narrative of purportedly protecting women’s health and toward a fetal rights frame, Nash said. The introduction of fetal burial legislation isn’t isolated to the states—Republicans in the U.S. Senate filed a bill in October requiring abortion providers to bury or cremate fetal tissue. Violating the law would result in up to five years in prison.
Georgia law has long regulated the disposal of fetal tissue, requiring “cremation, interment, or other manner approved of by the commissioner of public health for aborted fetuses.” Lawmakers in states including Tennessee, Mississippi, and South Carolina have introduced fetal burial legislation in recent years, and the Republican-controlled Ohio Senate passed a fetal burial bill in March. The Ohio House has not yet taken action on it.
Abortion opponents who support fetal burial laws say these requirements protect the “dignity of human life.” But those arguments, rooted in the concept of fetal “personhood,” are part of what make these laws problematic, Nash said. Requiring burial or cremation of fetal tissue contributes to the shame and stigma that surround abortion.
“If you’re talking along this line of burial and cremation, you’re talking about what happens to a human being when a human passes. You’re trying to make that connection in people’s minds,” Nash said. “This can be stigmatizing.”
Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, which operates a clinic in Indiana, told Rewire.News last month that mandating fetal tissue burial “amplifies the notion that abortion is outside of normal, mainstream medical practices.”
The additional cost of burial and cremation could increase the cost of abortion care for patients. The potential cost providers will face under Indiana’s law is not yet clear, but Planned Parenthood of Indiana and Kentucky estimates hundreds of dollars in increased expenses, according to the Associated Press.
In 2017, a federal judge blocked an Arkansas law mandating fetal tissue be disposed of in a “respectful manner,” meaning released to the patient, buried, cremated, or incinerated. In 2018, a federal judge blocked a Texas law requiring the burial or cremation of fetal tissue; a similar law is currently not being enforced in Louisiana as a result of a lawsuit brought by the Center for Reproductive Rights.
The reasoning behind blocking these laws largely rests on the undue burden standard set in Planned Parenthood v. Casey, Nash said, in which the Supreme Court ruled that states cannot enact laws that create an “undue burden” for anyone seeking an abortion.
U.S. District Judge David Ezra wrote in his decision regarding the Texas law that such requirements impose a burden on those seeking abortion because they “increase the grief, stigma, shame and distress of women experiencing an abortion, whether induced or spontaneous.” Since Indiana’s law was upheld, Texas attorneys have appealed to the Fifth U.S. Circuit Court of Appeals, though the three-judge panel has given no indication of when it will rule on the case.
If more states pass laws requiring the burial or cremation of fetal tissue, providers will shoulder the burden. “This is all about elevating the status of the fetus, and making it harder to keep clinic doors open using the frame of fetal dignity,” Nash said.