Earlier this month, Judge David Ezra struck down Texas’ Senate Bill 8 which mandated tissue from abortion or miscarriage be buried or cremated. In early August, Neta published a timeline of the Texas policies and proceedings regarding disposal of tissue resulting from pregnancy.

In the United States, there are currently 40 proposed laws and 21 statutes active in legislative proceedings that address tissue from abortion and miscarriage.

Pro-choice advocates say any policy forcing a person to bury or cremate tissue regardless of their private beliefs or needs is unethical and severe. However, the introduction of SB 8 in Texas was particularly outlandish because any patient receiving abortion or miscarriage care has had the option to inter (bury) the resultant tissue under Texas Department of Health law since 1989.

Photo courtesy of South Texans for Reproductive Justice

Beyond the unprincipled and invasive nature of forced tissue burial policies are the projected effects like the increased cost of abortion care intensifying the divide between those who can afford and access clinical abortion services and those who must carry unwanted or unviable pregnancies to term.

This is a concern for Rio Grande Valley dwellers because abortion care is already expensive and limited. 2016 US Census Bureau statistics found all four counties in the Rio Grande Valley are ranked highest in rates of poverty in the country.

Aileen Garza, a 21-year-old Edinburg native and reproductive rights activist said, “When abortion care is burdened with funerary costs, it’s an attack on our most vulnerable population.”

Judge Ezra’s Opinion

In the 53-page opinion regarding his decision to strike down SB8 provisions, which do not affect tissue passed in a person’s home, Ezra pointed to the unclear nature of miscarriage and abortion tissue precedents, dating as far back as 1983, as his reasoning for doing his own research on the subject.

This year, an Indiana law similar to SB8 was permanently enjoined not because the constitutionally protected right to abortion care was threatened (it was decided that it is not) but because the 7th Circuit court ruled that State’s interest in “humane and dignified disposal” of tissue resulting from abortion or miscarriage would have required legally recognizing that a fetus and a human are equivalent legally and otherwise.

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Understanding the complexity of this particular precedent, Ezra notes in his statement that while the Supreme Court has numerous times iterated the State has a legitimate interest in regulating healthcare during a viable pregnancy, such jurisprudence does not apply to the provisions found in Senate Bill 8 since they address instances in which the pregnancy has already ended.

Judge Ezra also pointed out that throughout history the Supreme Court has consistently denied that states have a legitimate interest in taking sides in discourse regarding religion or morality.

Further, Ezra quoted sections from Planned Parenthood v. Casey stating that the decision to have an abortion “depends on one’s beliefs” and the decision of whether or not to carry a pregnancy to term is “too intimate and personal for the State to insist . . . upon its own vision of the woman’s role.”

Building on this, Ezra said that SB 8 imposes “intrusive and heavy burdens on women whose belief about the status of the embryonic and fetal tissue,” if the woman’s views differ from the state’s.

Ultimately, Judge Ezra declined to say whether or not the laws mandating burial of tissue resulting from abortion or miscarriage further a legitimate state interest.

Ezra did, however, outline the impracticality of implementing SB 8’s provisions and acknowledged that dependable and feasible methods for disposing of tissue from abortion or miscarriage in a manner cooperating with SB 8 do not exist, noting the likely closure of many clinics that provide abortion care for inability to comply.

These closures, Ezra reasoned, would cause those who are seeking abortion care to use unsafe, non-clinical methods to end their pregnancies. Ezra’s claim is not unfounded; in 2015, after Texas House Bill 2 had closed over half the state’s clinics providing abortion care, the Texas Policy Evaluation Project reported an uptick in self-induced abortion.

During this period, Whole Woman’s Health in McAllen was closed, and undocumented pregnant persons seeking abortion services in the RGV were undoubtedly affected. There is no definitive data to show just how many poor and undocumented pregnant individuals ended their own pregnancies without help from a medical professional.

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“It’s an injustice to not have health care access, no matter what kind of care it is,” Garza commented. “It’s not fair to have to navigate through burial laws put in place by officials who will not be directly affected by the laws they pass.”

In a more technical portion of Ezra’s opinion, the judge examined the rationality of the State in distinguishing between identical kinds of tissue (fetal and embryonic) based on their location in either clinics that provide fertility or abortion services. Ezra drew the conclusion that separate rules for disposing of the equivalent tissues do not demonstrate a legitimate government purpose.

Protecting access to abortion

Legislation like SB 8, designed to undermine abortion rights without overturning Roe v. Wade always affects poor and marginalized people most directly. Wealthy people with resources to travel will always be able to access clinical abortion care.

As Texas reproductive healthcare centers and pro-choice activists grapple with ongoing anti-abortion legislation such as the so-called domestic gag rule and ominous political happenings like Supreme Court Justice Kennedy’s retirement and Brett Kavanaugh’s subsequent nomination, a powerful coalition of Texas abortion providers, funders and lawyers, have set into motion the People’s Lawsuit, providing radical hope on the offensive and for the future of reproductive justice in Texas and nationwide.