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Texas appeals ‘fetal burial’ ruling to 5th Circuit

November 20, 2018

AUSTIN — Texas on Monday appealed a lower court’s rejection of a law requiring fetal and embryonic tissue from most failed pregnancies be buried, arguing the topic deserves a “thorough discussion” of abortion precedent set by the U.S. Supreme Court.

Under Attorney General Ken Paxton, Texas argued U.S. District Judge David Ezra erred when he failed to place the burden of proof on abortion providers who did not attempt to comply with the 2017 law or find a vendor to handle the remains, according to a filing with the 5th Circuit Court of Appeals based in New Orleans.

Multiple courts have found fault in Texas’ attempts to to require fetal burials, most recently this summer when Ezra ruled the law was unconstitutional because it created “substantial obstacles” for women, doctors and abortion clinics while offering “absolutely no health benefit in return.” Ezra added Texas’ rush to implement the law and a lack of resources to facilitate the interment created the undue burden.

The law requires the fetal or embryonic remains from abortions, miscarriage and ectopic pregnancies be buried or cremated regardless of the woman’s wishes or religious beliefs. The law does not pertain to at-home abortions or miscarriages.

The courts have overturned several Texas laws restricting abortion in recent years. One sought to require the burial of fetal and embryonic remains in 2016 following the U.S. Supreme Court decision that struck down a pair of Texas regulations on abortion facilities and physicians.

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