Reproductive Rights Meet . . . Waste Disposal Law?

Texas aims to limit abortion via environmental regulation

All know that by a 5-3 vote, the U.S. Supreme Court in June struck down as “undue burdens” on the exercise of reproductive rights the State of Texas’s 2013 restrictions on abortion facilities.  Those rules required facilities to meet illogical physical premises requirements and to have physicians with local hospital admitting privileges – privileges the Court deemed to play “no relevant credentialing function.”  (Whole Woman’s Health v. Hellerstedt, 579 U.S. __ (2016).)  The Court found that both requirements were constitutionally proscribed because they were medically unnecessary and placed “a substantial obstacle in the path of women seeking an abortion” by imposing costs that forced clinic closures.

Few know, however, that while Justice Breyer’s signature on the majority opinion was still drying, the losing State defendant/respondent was at it again, applying its Texas-sized imagination to devise new forms of pretextual regulation to make provision of abortion services difficult, expensive, and further stigmatized.  This time, the bizarre vehicle of choice is environmental law: amendment of an obscure subchapter of the state’s administrative code on “special waste from health care-related facilities,” which governs the treatment and disposition of wastes from sources as varied as hospitals, tattoo parlors, pharmacies, and veterinary labs. (Texas Admin. Code, tit. 25, §§ 1.132-1.137.)

Prior to July 2016, Texas health care waste regulations included in the definition of “pathological waste” all human materials removed during surgery, labor, delivery, and autopsy, ranging from a diseased kidney to a healthy placenta to a fetus from spontaneous or induced abortion.  Because of the possibility of infectious disease transmittal from biological waste, the regulations specified multiple “Approved Methods of Disposal and Treatment.” Their common feature was insuring disinfection (through chemical/steam/desiccation processes, or super-heating), followed by cremation, burial (“interment”), or disposal in a sanitary landfill.

As proposed on July 1, however, Texas’s regulations would be amended to treat “fetal tissue, regardless of the period of gestation” as a separate category of waste (distinct even from “placenta, umbilical cord and gestational sac”), and eliminate the option of landfill disposal.  Instead, all fetal tissue would need to be either: (1) incinerated and then interred; (2) steam disinfected and then interred; (3) cremated; or (4) interred.

As a matter of politics, the requirement that fetal remains receive a funeral-like disposition is an ingenious means of simultaneously fortifying fetal personhood as a legal status and driving up costs for abortion providers. As a matter of environmental health, however, the regulations are stupefyingly indefensible: option (4) – simple interment, with no biological deactivation required — increases disease transmission risk as compared to existing regulations. (Presumably this is why the proposed rule’s cursory Regulatory Analysis states that the amendment “is not intended to protect the environment or reduce risks to human health from environmental exposure.”)

The comment period on the proposed regulations has now closed.  If they become final, litigation by pro-choice activists will likely be immediate. Calls to the environmental law bar for expert declarations and amicus briefs will not be far behind.

Reader Comments

5 Replies to “Reproductive Rights Meet . . . Waste Disposal Law?”

  1. Claudia said;
    “…..As a matter of politics, the requirement that fetal remains receive a funeral-like disposition is an ingenious means of simultaneously fortifying fetal personhood as a legal status and driving up costs for abortion providers……”

    Dear Claudia,
    Many progressives are pro-abortion and have no regard for the consequences of killing innocent children. When I was young I was pro-abortion myself. But when I matured, I became closer to God and understood that abortion is a sin, so I repented of the abortions that I had personally participated in, and I no longer support this vile, ugly and evil practice. You should be thankful to God that your mother did not abort you. Don’t push abortion on other people’s children.

    1. Since you personally participated in the “killing of innocent children,” should you go to prison for being an accessory to murder?

      1. Dear BBQ,
        Good question. Yes I should be punished and my conscience hurts because of my sin. Since abortion is legal I will not be punished in this wicked temporal world that we live in. Since God has forgiven my sins I will be redeemed in the life of the world to come. That is why we have faith in God.

        1. Since you admit to being a serial murderer, and since you are obviously a person of high moral integrity, it seems clear that you should not let a flawed legal framework stand in the way of you getting the justice you deserve in this life. I recommend the following article detailing ten different people who intentionally got arrested, and their methods for doing so:

          http://www.oddee.com/item_98692.aspx

          I have a few follow up questions that I hope you will entertain. Do you support the death penalty in general? Do you believe people who commit pre-meditated murder on multiple innocent children should receive the death penalty?

          Most importantly, considering the hundreds of thousands of abortions that occur in this country every year (compared to 9/11 which killed only 3,000 people), should we assume that enacting a law that would execute people like yourself (and the women you helped) is something you spend a considerable amount of time and energy advocating for?

          Maybe since you didn’t have to spend a lifetime in prison for your multiple murders, you should consider donating your life savings and 90% of your income in support of getting such a law get passed.

          1. BBQ said;
            “…..Since you admit to being a serial murderer, and since you are obviously a person of high moral integrity, it seems clear that you should not let a flawed legal framework stand in the way of you getting the justice you deserve in this life…..”

            Those are strong words which underscore the gravity of this issue and offer a sharp contrast to the flippant and unconcerned opinions of Ms Claudia Polsky who blithely ignores the traumatic moral consequences of abortion. Women who have abortions often pay heavy psychological and emotional penalties throughout their life, they live in fear of facing God when they die. Abortion is evil and should be avoided.

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About Claudia

Claudia Polsky

Claudia Polsky joined Berkeley Law in July 2015 as the first Director of its Environmental Law Clinic and Assistant Clinical Professor of Law.…

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