Illustration by Julia Kuo
Anti-abortion politicians across the country want to mandate burial or cremation services for fetuses—regardless of gestational age, and regardless of whether they're the result of abortion or miscarriage. Although these politicians insist they're advocating for the dignity of "unborn children," critics say they're simply trying to attack women's right to choose.
In honor of Planned Parenthood's 100-year anniversary, we're taking an in-depth look at the history and future of reproductive rights. Read more of our coverage here.
Two years ago, Denee, a 39-year-old mother of two, was in a car accident. She was pregnant at the time, and at the hospital, staff informed her that the child she was carrying no longer had a heartbeat.
Devastated, and not wanting to carry a nonviable pregnancy to term, Denee decided to take the abortion pill. "I didn't set out to have an abortion," she tells me over the phone. "I didn't want to have an abortion. Unfortunately, I needed one anyway."
Denee lives in Austin, Texas, a state with a notoriously draconian record when it comes to reproductive rights. Although she was able to get the quality care she needed in 2014, she now fears for other women in her region: Earlier this year, the Texas Health and Human Services Commission quietly proposed rules that would require fetuses to be buried or cremated, instead of being disposed of along with other medical waste.
Critics call it a "fetus funeral" law and say such legislation is a blatant attempt to impose a specific moral agenda on women and reproductive healthcare providers, to legally enshrine the idea that fetuses can die—which also implies that they're distinct, living beings at some point. Texas isn't the only state to propose a fetal burial rule in the past year or so. South Carolina and Mississippi legislatures voted on similar bills, though they both failed to pass; Ohio is currently considering one; and Indiana and Louisiana have both enacted laws of their own, though both are currently on hold pending ongoing litigation.
Abortion providers typically work with medical waste companies to dispose of fetal tissue in line with their state's public health guidelines. The fetal burial requirements under consideration would require them to make other arrangements—potentially forcing them to enter into costly, medically unnecessary relationships with funeral homes. (There is no public health benefit to burying or cremating fetal tissue, according to the Texas Association of Obstetricians and Gynecologists.) Pro-choice advocates fear that laws requiring funeral services for fetuses could place substantial financial and emotional obstacles around reproductive healthcare access, possibly making the constitutionally-protected right to abortion unattainable for women across the country.
At the time of her procedure, Denee says she was asked if she wanted to save or preserve the fetal tissue. She knows other women who have elected to do so after losing their own pregnancies, but she absolutely did not want to. She says she can't imagine how she would have felt if she had been made to arrange or consider funerary services. "It would do nothing but make me cry," she states. "I cannot tell you the level that that would have probably impeded my mental state."
Indiana's fetal burial statute predates the proposed Texas rules by a few months; it's one provision of a sweeping, terrifyingly comprehensive anti-abortion bill that Governor Mike Pence signed into law this March. At the time, the National Network of Abortion Funds called the legislation "one of the most vicious omnibus anti-abortion bills the United States has ever seen."
In June, a federal judge blocked the fetal disposition provision from taking immediate effect, suggesting it was unconstitutional. If it does manage to become state law, providers in the area aren't quite sure what they'll have to do in order to comply. "I think the bill and the resulting law were really poorly crafted," says Patti Stauffer, the vice president of public policy at Planned Parenthood of Indiana and Kentucky. "There is no question that there was a lot of confusion on what this bill actually did and how it was supposed to be successfully implemented."
Here's what pro-choice groups in the area expect: Under the proposed law, providers would have to enter into a relationship with a funeral home. Every time an abortion or miscarriage occurred in a facility, they'd need to obtain a burial transit permit for the fetal tissue. Each patient, having just undergone an abortion procedure or suffered through a miscarriage, could be required to decide whether the fetus will be buried or cremated. And then someone would have to pay for it.
I don't think [lawmakers are] considering—or don't care about—some of the unintended consequences of this.
One of the most troubling parts of fetal disposition laws is that no one is really sure how they'd function. Collecting fetal tissue in order to cremate or bury it is not really an easy process, especially considering that 23 percent of non-hospital abortions in America occur by medication abortion, in which women typically abort at home after taking a pill in the presence of their provider, or that women can experience miscarriages at home (and that as many as 20 percent of pregnancies end in miscarriage).
"What happens with women who didn't even know they were pregnant until they miscarry?" demands Denee. Would they have to gather up the bits of fetal tissue and bring them to a hospital or funeral home? She also worries about the law's potential emotional and psychological side effects—a fear the Texas Association of Obstetricians and Gynecologists shares. In written comments addressed to the Texas Department of State Health Services, the organization said, "Mandating that fetal tissue at any point in gestation be collected for cremation or interment could become a cruel mandate on a woman who is experiencing the grief and trauma of losing a very wanted pregnancy."
"There are ways in which I don't think [lawmakers are] considering—or don't care about—some of the unintended consequences of this," Denee says.
It's also generally unclear who would shoulder the cost of the burial or cremation, which is not insignificant. In Texas, basic funerary services—even for something as small as a first-trimester fetus—cost around $2,000, according to Jim Bates, director of the Funeral Consumers Alliance of Texas. "Someone pays for this, but we are unclear under the proposed rule who will pay for it," he wrote in a letter to the Department of State Health Services.
The Indiana law explicitly states that the abortion provider is responsible for the final disposition of the fetal tissue, and Texas officials have since clarified that their policy would be the same. Still, the added expense of the funeral services would most likely affect the price of the procedure—especially since neither state allows public funding or insurance coverage for abortion services.
"Our mission is basically to provide comprehensive healthcare services to both men and women, for which cost is not a barrier. Having said that, there are very real costs to providing health services, and those costs have to be covered in some way," says Stauffer. "It is extremely problematic when these unnecessary rules and regulations are put into place that impede access, for low income women particularly."
This is really about burdening women... and trying to, through the back door, end access to abortion.
Another area of contention: How does one even cremate a fetus? Over 90 percent of abortion procedures take place in the first trimester; at the end of this period, the fetus is about the size of a pea pod. Stauffer notes that those opposed to the fetal remains provision raised "significant concern about exactly how crematoriums, which are built to deal with entire human bodies, would actually be able to handle the small volume involved with a first trimester abortion."
Bates puts it more bluntly: "To cremate a two-gram fetus—I mean, this is kind of a rough way to say it, but you could do it with a handheld propane torch. It's just cartilage; there's no bone."
These laws are, perhaps, perplexing by design. Stauffer describes Indiana's as poorly crafted and punitive. "The language and the information that's presented in the law is convoluted, and we've even had several different attorneys from several different medical venues look at it and come to different conclusions on what it really meant," she says. "There was a lot of confusion and question."
When he signed the Indiana bill into law, Pence triumphantly said that he hoped it would "ensure the dignified treatment of the unborn." In general, the concept of "dignity for the unborn" permeates fetal burial rules; many of the recent bills were based on model legislation drafted by the anti-abortion group Americans United for Life (AUL), something AUL notes excitedly in its 2016 state session report. The model policy is titled "Unborn Infants Dignity Act." In its introduction, it states, "Deceased unborn infants deserve the same respect as other human beings... Unborn infants should not be disposed of as 'medical waste' when they die before birth."
Anti-abortion advocates are quick to invoke the horror of fetuses getting thrown in landfills or pulverized with other medical waste. "These babies deserve a burial or cremation... They do not deserve incineration in bio-waste or a landfill or to be ground up," said Paula Moore, a state board member with the conservative group Concerned Women for America, at a recent hearing regarding the Texas rules. "What could justify this inhumane treatment of babies' bodies?"
In a fundraising email sent to his supporters in July, Texas Governor Greg Abbott raised similar concerns. "I believe it is imperative to establish higher standards that reflect our respect for the sanctity of life. This is why Texas will require clinics and hospitals to bury or cremate human and fetal remains," he wrote. "I don't believe human and fetal remains should be treated like medical waste and disposed of in landfills."
Of course, respecting fetuses in death isn't the actual purpose of this legislative trend: Subjecting abortion providers to harsh and hyper-specific restrictions is a tried and true method of forcing clinics to shut their doors. In June of this year, the Supreme Court struck a staggering blow to the anti-abortion movement, declaring an infamous Texas law that had forced over half the clinics in the state to close unconstitutional. The Texas Department of State Health Services proposed its fetal remains rules four days later.
Unborn infants should not be disposed of as 'medical waste' when they die before birth.
Anti-abortion activists have explicitly said that they hope to use these types of laws to shut down clinics. Last year, David Daleiden, the man behind the anti-Planned Parenthood "sting" videos, appeared at a conference for conservative legislators and said that fetal tissue disposal practices were abortion providers' Achilles' heel. "From a legislative perspective I think the most impactful [measure] could be disposal," he declared. "Laws requiring that human fetuses receive death certificates—that creates a huge bottleneck for them. That makes it difficult for the clinics to work."
It's a remarkably transparent tactic. "This is not about the state trying to ensure respect for life or ensure public health interests are met," says Amanda Allen, senior state legislative counsel at the Center for Reproductive Rights. "This is really about burdening women... and trying to, through the back door, end access to abortion."
Despite their obsession with human dignity as it applies to fetuses, the politicians behind these laws seem largely unconcerned with the very real obstacles women face in attempting to exert control over their own reproductive lives. As Jim Bates noted in his letter to the Dept. of State Health Services, the words "woman" and "women" don't appear anywhere in the Texas rules. "It can be inferred that a woman's stake in this issue has been excluded from a rule that directly affects her emotional, spiritual, and financial security," he wrote.
"What these requirements are really intended to do is to shame [women], to make them feel ashamed of their decision," says Allen. "I think it's interesting that this model legislation talks all about dignity, but it never once references the dignity of the woman."
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