Just when you thought the antichoice movement couldn’t get any sneakier with moves to punish, shame, and burden abortion-seekers, they came up with fetal funerals. The Texas Department of State Health Services just finalized rules requiring that care providers bury or cremate fetal remains when they treat miscarriages or perform abortion procedures. Short of a legal victory, the rules take effect on December 19, just in time for the holidays.
While the term “funeral” is a bit of a misnomer—no services are required (yet) and patients are not required to attend the disposition (yet)—the rules are very much designed to cement the association of “fetus” with “person.” After all, we don’t cremate or bury any other biological tissue in a funerary sense, though incineration and disposition in specialized landfills are both widely used. Funerals, though, are rites typically reserved for dead loved ones, from queens to homeless people who die forgotten on the streets to beloved pets.
“Unborn Infant Dignity,” as the cool kids call it, isn’t actually new, though it was one of Americans United for Life’s legislative priorities for 2016. What other states, including Indiana (where a law was passed but slapped down in court), South Carolina (failed), and Mississippi (failed) are trying to accomplish through legislation in the state house, Texas aims to do via rulemaking in a government agency. One requires the work of elected legislators accountable to constituents, while the other is accomplished by often partisan executive appointees tasked with overseeing the activities of agencies responsible for things like environmental protection, agricultural inspections, or public health. The DSHS proposed the initial rules just days after the Supreme Court rebuked the state in Whole Woman’s Health v. Hellerstedt, arguing that undue burdens on a patient’s right to choose were unconstitutional. If at first you don’t succeed, try, try again, over the voices of 35,000 commenters.
It should be noted that people have always been allowed to conduct funerals for fetal remains, and while it’s not common, it definitely happens, particularly in the case of people who experience stillbirths. The desire for closure after a pregnancy goes wrong is as understandable as it is human, but implying that fetal remains in general should be treated as the moral equivalent of an actual person is quite slimy. Obviously, it’s humiliating and shaming, designed to make patients feel like monsters for seeking routine medical care, and calculated to give the notion of fetal personhood another foot in the door.
But it’s also a very crafty financial blow to abortion access.
As anyone who’s had to arrange a funeral recently knows, they’re expensive. The median price of a funeral in the United States is around $7,000, according to the National Funeral Directors Association; and “funeral poverty,” in which people cannot afford funerals and/or go into substantial debt to bury a loved one, is a very real problem. Those mysterious unclaimed bodies you’re always hearing about aren’t always unclaimed because no one knows who they are — instead, sometimes it’s because their families cannot afford to bury them. The heartbreaking number of funeral-expenses fundraisers, especially in the wake of police shootings, illustrate the dire nature of this problem. When a huge number of Americans have barely any savings for financial emergencies, where is that $7,000 or more supposed to come from?
Fetal remains might not take up much room, and their disposition is much simpler than that involved in, for example, a full-scale funeral for a deceased adult. There’s likely no viewing, services, or long-term storage waiting for family to arrive for the funeral. But that doesn’t mean it’s free. Someone has to be providing the services involved, including running cremation units, digging holes for graves, and handling the remains themselves. Those people want to be paid.
Even funeral directors have concerns about what the rules might mean. Historically, many have offered to cremate fetal remains free of charge for people who have had miscarriages and would like to engage in more formal mourning. This charitable act isn’t practical if they’re required to provide cremation and/or burial for every abortion or miscarriage. As many as 25 percent of known pregnancies end in miscarriage, often within the first 13 weeks — though many of these take place at home. That’s a lot of pro bono fetal-remains funerals.
Texas funeral director Sarah Wambold argues that fears over the rules may be overstated —she says a close reading of the regulations suggests that medical waste companies may continue to handle fetal remains. That said, she notes that the language around the rules is clearly designed to be evocative of funerals, elevating fetal remains to something other than medical waste.
Technically, it’s the abortion facilities who are required to meet these new rules, and while they may not be paying retail price for funeral services, they are going to be paying something — and it may not be the comparatively affordable rates charged by medical waste–disposal companies if the state determines that existing methods of handling fetal remains don’t meet the standards set by the rules. That added cost can’t be absorbed by even the most well-meaning of medical clinics (even if they decide to go into business moonlighting as a funeral home to keep services in-house, which would surely cause apoplexy among anti-choicers). This means that patients are going to be facing a significant added fee on top of the expenses associated with miscarriages or abortions. It could be as much as $2,000, estimates the Funeral Consumers Alliance of Texas, which would radically jack up the cost of miscarriage and abortion care.
During hearings on the rules, authorities heard firsthand about the potential consequences. One woman, Ashley Blinkhorn, told them that after experiencing two miscarriages before the age of 25, had this rule been in place, she wouldn’t have sought medical treatment. Blinkhorn wouldn’t have been able to afford the bill for burial or cremation, even though the costs of an untreated miscarriage can be very, very high. Patients may develop uterine infections or sepsis, which can contribute to future infertility, and lead to death if left untreated.
The rules in Texas stand to be less punitive than the Indiana bill, which activists argued contained a mandate for all fetal remains to be buried or cremated—including the products of miscarriages at home or medical abortions—while patients often take medication in a clinical setting, the actual abortion typically takes place at home. (And really, why stop there? Why not offer the same courtesy to menstrual blood?) But they are still bad news for people who are already struggling to afford abortion care. And while you’d expect the usual suspects like NARAL Pro-Choice Texas, the Center for Reproductive Rights, and Planned Parenthood to oppose these rules, so did the Texas Medical Association and the Texas Hospital Association. They’re concerned about how these rules are supposed to work out in practice, and what it means for patients and providers.
Economic aspects of bills like these highlight a tremendous class divide when it comes to abortion in America, and it’s one that it only becoming more extreme as states crack down on abortion access. The harder it gets to obtain an abortion, the more money you need—and the more money you have, the more insulated you are from hardship. In coming years, wealthier patients and those with large safety nets will be able to get the reproductive health care they need, even if it includes frivolous and clearly suppressive caveats and riders like waiting periods or restrictions on disposition of fetal tissue. Meanwhile, low-income patients will suffer, which in a sense is precisely the point. Legislation like this punishes people for seeking abortions, and drives the upward trend in DIY abortion in places like Texas.
In the short term, it means that patients could be facing an astronomical increase in abortion and miscarriage expenses as of December 19, unless the Texas rules are challenged. The Center for Reproductive Rights has threatened to do just that, saying that the Supreme Court already warned the state about anti-choice regulatory and legislative activities and Texas should have learned its lesson.
With Ohio passing a bill that would ban abortion as early as six weeks after conception on Tuesday and Texas sticking to its guns on these regulations, it’s pretty clear that the lessons of Planned Parenthood v. Casey, Whole Women’s Health, and Roe v. Wade haven’t sunk in for the antichoice set. Draconian legislation and rulemaking designed to make abortion inaccessible is likely to become more normalized in the coming years. Thanks to the efforts of groups like the AUL and their copy-paste legislative guides, it’s a snap for state and federal lawmakers to write up an antichoice bill — or, as in Ohio, sneak a nasty kicker of an amendment onto a critical piece of legislation.
Ohio lawmakers indicated that one reason they pushed a ban through was the sense that they would be supported by the Trump Administration. As Vice-Presidenct elect Mike Pence, notorious for presiding over horrific conditions for people seeking reproductive health services during his tenure as governor of Indiana, gets ready to take office in January this assumption of support is as logical as it is frightening. Though it’s unusual for a vice-president to be forced to break a tie in the Senate, it does happen — and Pence is not the man you want deciding the vote on a contentious abortion rights bill. With a Republican-dominated Congress and White House, The Handmaid’s Tale and When She Woke are looking more like useful guidebooks than dystopian fiction.