A federal judge has blocked a controversial Texas law from going into effect—one that would have required health care providers to cremate or bury fetal remains—because of the restrictions it would impose on a woman’s legal right to obtain an abortion.
In Whole Women’s Health v. Smith, abortion-rights groups argued that S.B. 8, a law passed last year by the Texas Legislature requiring health care providers to cremate or bury fetal remains, violated both the due process and equal protection clauses of the U.S. Constitution.
Senior U.S. District Judge David Ezra of San Antonio agreed with the plaintiffs in a Sept. 5 decision, concluding that the state law placed a substantial obstacle to women seeking an abortion in violation of the Fourteenth Amendment.
“By endorsing one view of the status and respect to be accorded to embryonic and fetal tissue remains, the State imposes intrusive burdens upon personal decisions concerning procreation, especially upon the right of the woman to choose to have an abortion,” Ezra wrote.
“And most importantly, the evidence in this case overwhelmingly demonstrated that if the challenged laws were to go into effect now, they would likely cause a near catastrophic failure of the healthcare system designed to serve women of childbearing age within the State of Texas,” Ezra wrote.
Ezra also noted in his decision that Texas has no system in place for disposing of fetal tissue, nor the resources to ensure the law could operate as intended.
Morrison & Foerster partner Alex Lawrence, who represented the plaintiffs in the case pro bono, is happy with the decision.
“Courts around the country have consistently found that laws like the Texas law requiring the burial of fetal tissue violate the United States Constitution. These laws have one aim—to shame women who exercise their constitutional right to choose,” Lawrence said. “We are pleased that Judge Ezra thoughtfully considered the law and the evidence presented by both sides at trial and reached the same conclusion.”
Texas Attorney General Ken Paxton said he will appeal the decision.
“We established during a weeklong trial in July that the law is constitutional and does not impact the abortion procedure or the availability of abortion in Texas,” Paxton said. “My office will continue to fight to uphold the law, which requires the dignified treatment of fetal remains, rather than allow health care facilities to dispose of the remains in sewers or landfills.”