Forced Memorials: Texas and its Forced Cremation Law

By: Rebecca Levine

In December of 2016, the state of Texas attempted to enact a set of health laws; hidden within them is a law stating that all aborted fetuses, no matter the length of gestation, would be required to be cremated or buried.[1]  The rule is quietly placed between a law regarding discarding pathological waste from laboratories, and discarding bodily fluids from laboratories and hospitals.[2]  Unfortunately, Texas is not the only state to attempt to introduce similar anti-choice policies.  In July of 2016, Indiana proposed similar legislation, also in which an aborted fetus must be interred or cremated, but the abortion clinic would absorb the cost to inter or cremate the fetus.[3]  In his last month as governor of Indiana, Mike Pence signed this legislation into law, but it is far more restrictive than the Texas law.[4]  Indiana requires that miscarried and stillborn remains, as well as aborted, be buried or cremated.[5]

The Center for Reproductive Rights filed suit to block the Texas law by noting that the law added nothing to promote public health.[6] They also stated that it was enacted to shame women into not going through with their procedure.[7] Additionally, the complaint stated that the law would inadvertently affect miscarriage care costs, as the clinics would have to find separate vendors to dispose of the fetuses for cremation and burial versus a medical waste disposal vendor.[8]  A surprising group other than pro-choice women and liberal interest organizations were angered by the rule and its impact on them: funeral directors and homes.[9]  The directors argued that the cost of performing a small cremation could be anywhere from $400-$450, and that a burial would be an additional $500-$550.[10] This cost would likely be passed onto the abortion clinics, which would then force the cost of the procedure to increase as well.[11]

The proposed laws are a response to an ongoing wave of anti-choice feelings, which began with the heavily edited and slanderous videos of Planned Parenthood released in 2015.[12]  Particularly in Texas, these new laws can also be seen as backlash from the Supreme Court Decision of Whole Woman’s Health v. Hellerstedt.[13]  The June 2016 ruling struck down Texas’ admitting privileges rules as an undue burden on health care providers and clinics.[14]  One of the clinics that Center for Reproductive Rights filed for in December 2016 was Whole Woman’s Health.[15]  On their behalf, the Center stated that this law also involves an undue burden on the abortion care providers, as the clinic could only find one crematorium in the entire state willing to handle the remains should the law go into effect.[16]

Anti-choice notions are still going strong, with the election of Donald Trump and the backlash against the Women’s March on January 21, 2017.[17]  Luckily for the women of Texas, a federal judge blocked the law just four days before it was supposed to be enacted.[18]  The judge ruled that a preliminary hearing was needed to determine the legality and validity of the law; the hearing is set for January of 2017.[19]    Hopefully, the hearing will rule in favor of women’s choice and freedom of bodily autonomy.


[1] See 25 Tex. Admin. Code § 1.136 (2016).

[2] See id.

[3] See Ind. Code. § 16-34-3-4 (2016).

[4] See Alexandra Zavis, The latest battlefront in the abortion wars: Some states want to require burial or cremation for fetuses, Los Angeles Times (Jan. 23, 2017, 3:00 a.m.), http://www.latimes.com/nation/la-na-aborted-fetus-burial-2017-story.html.

[5] See id.

[6] See Complaint at 3, Whole Woman’s Health v. Hellerstedt, 1:16-cv-01300, Dec. 12 2016 (W.D. Tex. at Austin) https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/1-main.pdf.

[7] See id.

[8] See id. at 14.

[9] See Wade Goodwyn, Funeral Directors Weigh In On Texas Rule Requiring Burial Of Fetal Remains, National Public Radio (December 12, 2016 6:06 p.m.), http://www.npr.org/2016/12/12/505268477/funeral-directors-weigh-in-on-texas-rule-requiring-burial-of-fetal-remains.

[10] See id.

[11] See Id.

[12] See Jennifer Ludden, Lawsuit Challenges Fetal Burial Rule in Texas, National Public Radio (December 12, 2016 5:52 p.m.), http://www.npr.org/sections/thetwo-way/2016/12/12/505304688/lawsuit-challenges-fetal-burial-rule-in-texas.

[13] See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2292 (2016).

[14] See id.

[15] See Alexandra Zavis, The latest battlefront in the abortion wars: Some states want to require burial or cremation for fetuses, Los Angeles Times (Jan. 23, 2017, 3:00 a.m.), http://www.latimes.com/nation/la-na-aborted-fetus-burial-2017-story.html.

[16] See id.

[17] See Steve Moore, Steve Moore: What I learned at the Women’s March, Fox News (Jan. 23, 2017), http://www.foxnews.com/opinion/2017/01/23/steve-moore-what-learned-at-womens-march.html.

[18] See Rebecca Hersher, Judge Blocks Texas Rule That Would Require Burial Or Cremation Of Fetal Tissue, National Public Radio (December 15, 2016, 6:47 p.m.), http://www.npr.org/sections/thetwo-way/2016/12/15/505757998/judge-blocks-texas-rule-that-would-require-burial-or-cremation-of-fetal-tissue

[19] See id.; (noting that as of January 27, no news sources have reported the result of the hearing.)