Bush Judge: Abortion Facilities May Throw Babies in Trash as It Is ‘Undue Burden’ to Require Burial

AUSTIN, Texas — A federal judge nominated to the bench by then-President George W. Bush issued a preliminary injunction this week against a new Texas regulation requiring that abortion facilities arrange for deceased babies to be either buried or cremated instead of being treated as medical waste, stating that the requirement places an “undue burdens on a woman’s right to seek a previability abortion.”

“It seems unlikely DSHS’S professed purpose is a valid state interest and not a pretext for restricting abortion access,” U.S. District Judge Sam Sparks extended his restraining order against the rule on Friday. “By comparison, Plaintiffs face likely constitutional violations, which could severely limit abortion access in Texas.”

He expressed uneasiness about the state’s argument that the rule is necessary to treat the unborn with dignity, opining that the negatives outweigh the positives in that the lack of funeral services willing to handle the babies could make it difficult for abortion facilities to comply, “which would deliver a major, if not fatal, blow to health-care providers performing abortions.”

Sparks also said that Texas’ testimony surrounding estimated costs for abortion facilities were made “using simple, back-of-the-envelope math, which is unsupported by any research and relies heavily on assumptions.” The state had suggested that abortionists could pool together and utilize a mass grave for the remains of aborted babies, which it said would cost less than $2 a baby.

As previously reported, in Texas, abortion facilities customarily contract with third party medical waste companies to dispose of the aborted babies, which are usually classified as “pathological waste.” The containers of aborted babies, mixed in with boxes of bodily fluids, tissues and other items that are not permitted to be thrown in the trash, are then transported to an incineration plant where they are burned into ash and then dumped into landfills.

However, current Texas law also allows for other types of disposal, including “grinding and discharging to a sanitary sewer system,” “chlorine disinfection/maceration followed by deposition in a sanitary landfill” or other “approved alternate treatment process, provided that the process renders the item as unrecognizable, followed by deposition in a sanitary landfill.”

Last month, the Department of State Health Services finalized a rule at the request of Gov. Greg Abbott that requires abortionists to utilize burial or cremation services provided by funeral homes rather than hiring medical waste companies to dispose of the children with other medical trash.

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But days later, several abortion facilities filed suit to stop the regulation from going into effect, including Whole Woman’s Health, Brookside Women’s Medical Center, Austin Women’s Health Center, Alamo Women’s Reproductive Services and others. As previously reported, the medical waste company Stericycle was fined $42,000 in 2011 for dumping fetal remains from Whole Woman’s Health with household and commercial trash.

The lawsuit was filed in part by the New York-based Center for Reproductive Rights.

On Dec. 15, Judge Sparks issued a temporary injunction, halting the rule, and earlier this month, he heard oral argument over the issue. He became befuddled as the state argued before the court that “fetal tissue is not human remains” under the law and is simply “pathological waste” since the child hasn’t yet been born.

“Fetal tissue is not human remains for the purposes of this statute,” Assistant Attorney General John Langley replied in response to a question from Sparks, who pondered whether the rule requiring burial or cremation of aborted babies conflicts with the state’s current cremation law. The law allows human ashes to be sprinkled on private property without permission—which could include landfills.

Langley’s position was that the state cremation law and the aborted baby burial requirement did not conflict because “fetal tissue is not human remains” under Texas law.

“So it’s the official doctrine of the state that fetal tissue is not human remains?” Sparks inquired. “So you’re bringing dignity to non-human remains?”

“[Texas cremation law] deals with human bodies—bodies that have been born, lived and died. Fetal remains are categorized as pathological waste. It’s not a human body. It hasn’t been born,” Langley later stated. “It’s the state’s best effort to try to make the best of this situation.”

On Friday, Sparks opined in extending his injunction that the rule allows the state “to exercise arbitrary, and potentially discriminatory, enforcement on an issue connected to abortion and therefore sensitive and hotly contested.”

Abortion facilities in the state applauded the move.

“Anti-abortion attacks cannot and will not slow us down,” said Amy Hagstrom Miller of Whole Woman’s Health. “It is so important that our resiliency continues to blaze a path that people in all communities are empowered to stand up and continue to fight back against political interference that attempt to regulate our lives.”

But Attorney General Ken Paxton vowed to appeal.

“Texas has chosen to dignify the life of the unborn by requiring the humane disposition of fetal remains,” he said in a statement. “These rules would simply prevent health care facilities from disposing of the remains of the unborn in sewers or landfills.”

“Today’s ruling, however, reaffirms that the abortion lobby has grown so extreme that it will reject any and every regulation no matter how sensible,” Paxton lamented. “Indeed, no longer content with merely ending the life of the unborn, the radical left now objects to even the humane treatment of fetal remains.”

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  • Lexical Cannibal

    When asked how a provider could keep costs of these mandatory funeral services down, the Texas AG answered that they could keep it to as little as $2 a pop if they employed mass graves. MASS GRAVES.

    This was a poorly planned swipe at abortion, masquerading as a state interest and literally everyone working this case knew it.

    • Amos Moses

      Do not know what the procedure is where you live ….. but that is what is done in most counties where people die and have no family or are “unclaimed” …. no service … big hole … dumped …. covered up ….. but it is a cemetery ….. and you think that these children should be due “less” …… why ……….

      but lets be realistic …. do you honestly thing the local landfill or incinerator is any different ….. that that “mass grave” is somehow “not” …………

      • jono

        The BIBLE not only supports abortions, it COMMANDS ABORTIONS for an unfaithful wife in Numbers 5:11-31. If a wife had been unfaithful or even if the husband becomes jealous and suspicious of his wife, she must be put through a horrible ritual test. There was no birth control in antiquity and IF SHE WAS HAVING SEX, THERE WAS A GOOD CHANCE THAT SHE WAS PREGNANT! If the father was not her husband and she was guilty, she would become ill and abort the innocent fetus within her after drinking the bitter water (her abdomen would swell and her thigh wastes away). She would not have her child (or future children). This was abortion commanded by God! (if you believe God wrote the Bible).

  • BaritoneSax

    There’s an easy and moral solution to this: Outlaw this evil practice and there will be no dead babies to dispose of.

    • Bob Johnson


    • Ambulance Chaser

      Are you trying to say that if we outlaw abortion, there won’t be abortions?

      Have people stopped using drugs?

      • TheKingOfRhye

        We know how that worked with alcohol….not too well, really.

        • Chet

          True. However, there’s no comparison in desiring strong drink to that of killing unwanted defenseless little ones.

      • Robert

        Murdering people no matter their age should be against the law so those who did it can face prosecution.

      • Chet

        If there were no laws against murder on the books what do you think the daily rates would be…

        • Ambulance Chaser

          I don’t know. No one does. There’s no country that is exactly like the United States in all respects except that murder is legal there.

          I also might point out that the reasons people have abortions are vastly different than the reasons people commit murder.

          • Chet

            Either way, their victim is dead. And God Almighty, giver of all life, keeps perfect records to be revealed at the Great White Throne Judgment as recorded in Revelation 20: 11-15, Holy Bible. Respectfully, you might want to check your own source. Your eyes may very well become opened as never before…

          • Ambulance Chaser

            Okay, then, we’ve just veered totally off topic.

          • Chet

            Had you run out of thoughts on this matter of life and death with impending judgement or simply wish to not discuss it?

          • Ambulance Chaser

            I think that since there’s no evidence that there is such a thing as “impending judgment,” I don’t need to bother worrying about it.

          • Chet

            Okay, now I understand your point, somewhat, as we were talking death, period. I don’t know how electricity works nor how wind develops and blows whichever way it determines. Nevertheless, it’s all true believe or no. And the worst thing about rejecting God’s great grace and mercy via exclusively His only begotten Son, the Lord Jesus Christ of Calvary, is that at death, one’s eternity is sealed and there’s no escape. It’s an awful chance one takes to reject mercy and elect to face avoidable consequences. Certainly more risk than I care to take and since coming to Christ as a Hell deserving sinner, I now have assurance that Heaven will one day be mine, all thanks to Christ and his sacrifice on Calvary’s Cross for me and for you. God bless and thank you for the opportunity to share…

  • Robert

    I don’t want to ever again hear about how bad Nazi Germany was
    Even they didn’t throw the dead in garbage .

    • james blue


    • Ambulance Chaser

      Are we marching fully-grown, living, breathing people into incinerators?

      • Robert

        Yes. !!!! we nuke and have fire bombed civilian cities during that same time .

      • NCOriolesFan

        Yes, our pre-born developing future.

        • Ambulance Chaser

          So then, no. Got it.

  • james blue

    The law went beyond reasonable government reach and is an attempt to force compliance with the religious beliefs of the Governor on those who do not share them. It had zero to do with public health and safety

  • tatoo

    If you flush a miscarriage down the toilet, then what is the problem of not burying a fetus?

    • She-Panther

      Humans don’t behave that way. Animals do.

      • Ambulance Chaser

        That doesn’t answer his question.

      • NCOriolesFan

        At times I think animals are smarter than humans. At least animals don’t abort their pre-born intentionally, on purpose and deliberately.

    • http://maxfur.com/ Max T. Furr

      I’m quite sure that many daughters of fundamentalist parents have done exactly that.

  • http://maxfur.com/ Max T. Furr

    This is an excellent example of how politicians deceive their voters to get more votes. It is, essentially, lying.

    Attorney General Ken Paxton said he would appeal the preliminary injunction granted by Sparks.

    “Texas has chosen to dignify the life of the unborn by requiring the humane disposition of fetal remains,” Paxton said. “These rules would simply prevent health care facilities from disposing of the remains of the unborn in sewers or landfills.”

    This is a statement that not only is false, but designed to raise the level of hate and ignorance.

    I suggest that Christians ask the Texas AG for evidence that Planned Parenthood is dumping FETAL remains in sewers or landfills, but I won’t bet the farm any care about the truth.

    According to PP, “This is simply not true. Planned Parenthood has contracts with vendors to handle fetal tissue in a respectful manner and in accordance with the law. It is irresponsible for the AG to say otherwise.”

    The AG made the claim, it’s up to the AG to provide evidence.