Published
January 01, 1970

AUSTIN — U.S. Judge David A. Ezra released his ruling today permanently striking down the portion of Senate Bill 8 (SB 8) that bans the desecration of human remains after elective abortions and miscarriages. In Whole Woman’s Health v. Smith (1:16-cv-01300) several abortion providers sued to continue to allow certain methods of disposition of the remains of unborn babies who die from abortion. Those methods include grinding and flushing down a sewer system and burial in a landfill after incineration. Judge Ezra’s ruling allows abortion providers to continue using those methods. SB 8 requires abortion facilities and hospitals to use humane disposition methods, including cremation or burial.

Attorney General Ken Paxton, along with his legal team, defended the law and argued the State has an interest in advancing respect for the dignity of the life of the unborn.

The constitutional question centered around whether the regulations made it substantially more difficult for women to obtain abortions. Ezra ruled that the new law, as it would be applied to abortion facilities, violates the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution because of a lack of available disposition providers.

Nevertheless, the abortion providers failed to prove that the humane disposition rules in any way increase the difficulty for women to obtain abortions. They agreed to not argue that cost is a factor, and they testified that they neglected to reach out to their current or any other medical waste providers to find a provider to meet the law’s requirements.

A representative of the Texas Catholic Conference of Bishops testified that they will provide burial services after miscarriage and abortion for any hospital and abortion facility in Texas at no cost.

The challenged provision of SB 8, authored by State Rep. Byron Cook (R-Corsicana), was one of Texas Alliance for Life’s legislative goals when the Legislature met in 2017. Members of our public policy team closely monitored the five-day trial in Austin.

“We understand that the Supreme Court prevents Texas from making abortion substantially more difficult to obtain before viability, and this law does not do that,” said Joe Pojman Ph.D., Texas Alliance for Life Executive Director. “Regardless of whether this law goes into effect, the unfortunate reality is that abortion will remain readily available in Texas and will occur tens of thousands of times every year. This law merely requires that the dignity of the unborn child is recognized after abortion and that their remains are not treated as medical waste.”

“Texas Alliance for Life commends the robust defense of the law by Texas Attorney General Ken Paxton’s team,” stated Dr. Pojman.

In the meantime, other provisions of SB 8, by Sen. Charles Schwertner (R-Georgetown) and Rep. Cindy Burkett (R-Sunnyvale), remain in effect, including the ban on partial-birth abortion, the sale or donation of tissues and organs obtained after abortion, and research on those tissues and organs.

The decision is expected to be appealed to the 5th Circuit Court of Appeals in New Orleans.

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