Federal hearing on fetal tissue remains continues Wednesday

Fetal tissue hearing at Texas Capitol

A federal hearing on the state's controversial requirement that fetal remains be buried or cremated continued Wednesday.

Some abortion providers sued the state over the revised regulations that four of the seven approved methods of disposal, claiming it violates a woman's constitutional rights and makes it harder for providers to perform abortions. The state argues it increases public health and treats the unborn with dignity.

The methods of disposition the revision eliminates are grinding, chlorine disinfection and maceration, disposition in a sanitary sewer and disposition in a sanitary landfill.

The State has argued the new rules treat fetal remains or tissue with dignity, while the plaintiffs (abortion providers) say the government is trying to force it's opinion and viewpoints on life and when it begins, along with burial or cremation practices, onto all women regardless of their individual beliefs; leaving the plaintiffs and supporters of the rules on opposite sides when it comes to the argument of dignity.

"This law deprives women of dignity by invading their decision-making and saying 'in the event you suffer a miscarriage, or ectopic pregnancy or in the event you decide to have an abortion, we the government are going to decide what happens and not you the individual woman,'" said David Brown, Attorney for the Center for Reproductive Rights.

"The same definition that we would afford to a homeless person who dies or an infant who dies by virtue of that definition, we want to afford the same dignity to those children, to the remains of those children, who die from elective abortion," argued Joe Pojman, PhD, Executive Director of the Texas Alliance for Life.

The attorneys for the abortion providers called witnesses throughout the day Tuesday, saying the state is overreaching.

Wednesday's hearing started with the attorney for the plaintiffs calling their final witness, a doctor who performs miscarriage management. The doctor testified that she only performs procedures at Seton Hospital on an emergency basis because remains from that hospital are buried in a Catholic cemetery and that causes distress to some of her patients. She also told the court the revision provides no public health benefit and isn't good for women.

The defense (State) called medical doctor and philosopher Jeffrey Bishop to the stand next. Bishop admitted he did not know the current rules and had not fully read the revision. He testified that because the remains are human, they should be treated with a level of dignity that is not provided when the tissue is ground up and disposed of in a sewer or landfill.

During the cross examination, Bishop told attorneys he did not think it would be dignified to spread the ashes in a junkyard or parking lot. This was relevant because while the revision of the rules does not allow for ashes to be spread in a sanitary landfill, it is permissible to spread them on private property and attorneys have said that private property could very well be a junkyard or parking lot.

Next the State called the Executive Director of the Texas Conference of Catholic Bishops (TCCB), Jennifer Allmon. Allmon testified in December, the TCCB made a public announcement that they are willing to bury all of the fetal/embryonic tissue in Catholic cemeteries across the state at no charge. Allmon stood by that commitment during the line of questioning, adding the Catholic Church will take necessary steps to ensure it can provide the service. She also stated there will not be a funeral mass or prayer said over the remains before they are buried.

The final witness for the State was J. Patrick Carnes, a funeral director and owner of the largest crematory in Texas. Carnes is in negotiations with eight organizations, each with multiple hospitals, to cremate and bury the tissue or remains. Carnes said he plans to charge $175 for transportation within a 50-mile radius and $175 for the cremation of up to 25 containers of tissue.

During his cross examination, attorneys for the plaintiffs had him read from the state Funeral Commission's statement to the court, which states embryonic tissue is not human remains. That brought into question whether Carnes has the proper licenses to transport and handle that tissue. However Carnes said he would take all the necessary steps to comply.

At the conclusion of the arguments, Judge Sam Sparks was seemingly unsatisfied with the evidence, or lack thereof, presented by both sides. 

To the plaintiffs, Sparks agreed there would be increased costs and that it's unclear what they will be since the service is not currently provided. But he asked the attorney "what evidence have you put into record to show an unreasonable restraint on constitutional rights?"

He told the State's attorney the new rules provide absolutely no public health benefit as they claim and that it appears to be a 100-percent political decision. Sparks said, "the point is, what is the thought of taking the overwhelmingly, the majority of disposal out...why take the two least expensive ways out?"

Sparks decided to give both sides until Jan. 12, 2017 to submit additional fillings to prove their points and suggested they file findings and facts and law. He added that he plans to make a ruling during the week of Jan. 23.

Prior to the hearing, Judge Sparks temporarily blocked the rules from going into effect. He extended that order until Jan. 27.

Follow reporter Ashley Goudeau for updates from the courtroom:

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