After a week-long bench trial, a U.S. District Court judge in Texas issued a permanent injunction against a Texas law requiring burial or cremation of embryonic and fetal tissue remains in Women’s Whole Health v. Charles Smith. J. Alexander Lawrence, a partner with the law firm Morrison & Forrester argued the case in conjunction with attorneys from The Lawyering Project and the Center for Reproductive Rights.

J. Alexander Lawrence has a long history of working on litigation of this kind.  Inspired by his grandmother, who was an attorney known for defending an abortion clinic in Chattanooga, Tennessee, he says, “She was a hero of mine.  And one day, at Morrison & Forrester I was asked if I was interested in working on a case in Louisiana with the Center for Reproductive Rights, and I was like, ‘Yes, that’s fantastic, that’s what I want to do.””  Since that case, Smith has worked on several cases of this nature, at a rate of about one a year, protecting women’s due process rights and reproductive freedom.  His experience allows him unique insight into this kind of litigation.

Background on the Fetal Remains Legislation: Texas SB 8

At issue in the case was a Texas law that required a healthcare facility to provide burial or cremation of any embryonic and fetal tissue remains.  The legislation, SB 8, would require hospitals or other health care facilities--not just abortion clinics--to bury or cremate any remains, regardless of how the pregnancy terminated: whether from abortion, miscarriage, treatment of ectopic pregnancy or stillbirth, regardless of the patient’s personal beliefs or wishes.  This law was designed as a means for the state to show its regard and respect for the dignity of human life, however, in practice, this measure required women to go against their own beliefs in many instances. 

Main Issues in Women’s Whole Health v. Charles Smith

Smith says the main argument in Whole Women’s Health hinges on the undue burden standard.  If the burdens of the legislation outweigh the benefits of the legislation, then the legislation is an undue burden.  In this case, the state of Texas listed the benefit of the fetal cremation law to be a way for the state to show respect for human life.  However, Smith says, “In Women’s Whole Health, we had to get across with our witnesses is this [fetal burial law]  is something that many women find really offensive and it interferes with their core beliefs. The idea that you would bury or cremate or treat like a human against their will some tissue that's taken from the body, many women find really offensive.”  In this case, the state waived any argument that this legislation protected the health of the woman, and plaintiffs waived arguments about the legislation adding additional costs for women.

The Texas law applied to all facilities and all pregnancies and all fetal tissues, and women who suffered miscarriages are compelled to follow the state’s guidelines on disposal of the remains.  In many cases, the law was redundant, as many of the facilities provided options as to remains disposal for their patients--at the patient’s request.  Smith says, “This is not a law that says you get a choice to bury or cremate; this is a law that says even if your own beliefs, religious beliefs in some instances, go against this, you have to do it. That is the burden, and there is no benefit because the law already permits women to bury or cremate, if that’s their choice. All this law does is compel.”

Moving Testimony

The women who testified were able to viscerally demonstrate how the Texas law was an “undue burden” for women in the state.  Lawrence said when some women spoke, “people had a hard time holding back the tears.”  Many women who testified had gone through painful pregnancy experiences spoke movingly on how it felt to have no choice but to submit to the state’s expectation of how the remains should be treated. Lawrence credits their testimony with the case’s success.  Women speaking of their experiences', and how it felt to have Texas’s belief systems superimposed over their own--was an important part of how the plaintiff’s attorneys were able to demonstrate the undue burden created by the law.  Lawrence says, “we were able to show that it is an undue burden to impose the state’s belief system on women who have had an abortion or miscarriage management at a healthcare facility. To say that you have to take the remains and bury them in some kind of ritual--no matter how the woman feels about it--that’s wrong.”

While Women’s Whole Health v. Charles Smith is currently settled, all signs indicate that these issues will continue to play out in the courts.