The Supreme Court’s 2016 decision in Whole Women’s Health v. Hellerstedt (WWH) struck down a Texas law targeting abortion providers by allowing judges to balance the health benefits of the regulation against the burdens on a woman’s access to abortion. In doing so, the Court effectively gutted the efforts of anti-abortion legislators to limit the core right to abortion recognized in Roe v. Wade and Planned Parenthood v. Casey. Robertson Whole Women Until either Justices Anthony Kennedy or Ruth Bader Ginsburg retire and are replaced by a Republican President, Roe, Casey, and WWH should limit the reach of anti-abortion legislation.
A good example of the blocking effect of WWH is the difficulty states will now have enforcing statutes that aim at protecting fetal status prior to viability. Typical of such efforts are laws in 10 states that require that aborted fetuses be handled as if they were stillborn or dead children and adults, i.e., interment or cremation and interment. The practice for many years had been to teat fetal remains as other medical waste–incineration and deposition in a sanitary landfill, or grinding and flushing down a drain.
Indiana and Texas are the first two states to have their fetal burial requirements challenged, and both states were preliminarily enjoined from enforcing their laws. Now under appeal in the 5th and 7th circuits, those laws should not survive WWH (though one is never sure that the conservative 5th Circuit will affirm a decision against an abortion law).
The Indiana law was signed in 2016 by then Governor Mike Pence. Indiana Case The District Court found that the plaintiffs were likely to succeed on the merits because the state’s interest in treating “fetal remains with the same dignity as other human remains” is not rationally related to a legitimate governmental interest. The state interest was not legitimate even under a lenient rational basis test because the Supreme Court had held that for 14th Amendment purposes the fetus is not a person. Thus treating its remains with the same dignity and respect given human remains has no constitutional basis.
The judge found that while Indiana’s formulations of its interest “are not premised on a fetus being the same as a person, they are premised on the related principle that fetal tissue is entitled to a more respectful, dignified, or human disposition because it, like human remains, in some sense represents life.” Yet the State cited no legal authority for that position. Nor did the protection of potential life recognized as legitimate in Casey and Gonzales apply, because fetal remains have no potential for human life. Those interests are legitimate only during stages of pregnancy when there is a potential life, not after the pregnancy has been terminated.
The Texas law is a regulation which the state Health and Human Services Commission (HHSC) issued four days after WWH was decided to “affirm the value and dignity of all life.” A federal district court issued a preliminary injunction against that rule on January 27, 2016. Texas Burial Case The District Court found that there was evidence showing that the stated interest “is a pretext for its true purpose, restricting abortion. Even if that were not its purpose, the Court was not persuaded that its alleged interest in “protecting the dignity of the unborn” was a legitimate one. While the Supreme Court has acknowledged that the State has an ‘important and legitimate interest … in protecting the potentiality of human life [,]” the Court found “that the Amendments do not further such a legitimate state interest … [because] they regulate activities after a miscarriage, ectopic pregnancy, or abortion—activities when there is no potential life to respect.” Texas Burial Case
Alternatively, even assuming that “protecting the dignity of the unborn” is a legitimate state interest, the Court applied the WWH balancing test and found that the “burdens on abortion access substantially outweigh the benefits.” HHSC undercut the strength of the asserted benefit by recommending that “healthcare providers place fetal tissue in a single container, commingle fetal tissue from various procedures together, and freeze the tissue until disposal can be secured … . HHSC was not able to explain how this better protects the dignity of the unborn, nor why fetal tissue must be treated differently at home than in a doctor’s office.
Turning to the burdens imposed by the HHSC rule, the court found that restricting disposal of fetal tissue consistent with the disposal of human remains will impose burdens on abortion access. HHSC’s “back of the envelope” estimate that the ash from all abortions could be buried for one time for only $300 per year ignored the reality of the 280,000 square miles that comprise Texas and the 5.4 million women of reproductive age living there. The plaintiffs showed that the costs would be considerably greater because of transportation and administrative costs and vendor availability. The regulation would also pose significant logistical challenges for healthcare providers in terms of sorting procedures, storage, transportation, and ultimate disposal.
Finally, the there was only one funeral provider licensed and willing to bury fetal remains in the entire state of Texas, and that provider had no experience with fetal tissue. Nor had it experienced the controversy that would likely arise once it became known that it was in the fetal burial business. Nor would an offer from the Catholic Bishops of Texas to bury all fetal remains at no charge in a Catholic cemetery provide an alternative. That organization had not obtained the required permits for such an activity. Even if they had, the high likelihood that women of other faiths might object to burial in a Catholic cemetery would leave no burial option for many women.
While the Indiana and Texas decisions involve preliminary injunctions that have not yet been reviewed on appeal, they show the roadblocks that fetal burial statues will encounter. The question of whether a legitimate interest in potential life exists when the fetus is dead will be difficult to overcome. Even if it is a legitimate interest, states requiring fetal burial will still have to overcome WWH’s requirement that those benefits outweigh the obstacles they present to access to abortion. Until Donald Trump gets another appointment to the Supreme Court, the Roe–Casey–WWH framework will block states from enforcing legislation that hurts women in the guise of protecting their health or respecting dead fetuses.
 The funeral home owner had testified that he expected health care providers to “individually wrap the fetal tissue in cloth and tape so he could transport the tissue, up to twenty five units at a time, on a stretcher.” Texas Fetal Burial