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Posted on June 1, 2019 at 1:27 AM

by Craig Klugman, Ph.D.

In 2017, Texas passed an abortion burial law. As part of Texas Senate Bill 8 , this provision would have required that health care facilities ensure that an aborted embryo or fetus was treated like all human remains. This means the remains would have to be handled by a funeral director and disposed of via burial or cremation. The remains could not be disposed alongside medical waste, which is incinerated. This law never took effect as a federal judge ruled the requirement adds “significant burdens on women seeking an abortion or experiencing pregnancy loss” and that it conveyed “minimal, if any, benefits.”

This week, however, the U.S. Supreme Court upheld an Indiana law with the same requirement. Doctors who perform abortions and health care facilities where they are done are now responsible for ensuring that aborted embryos and fetuses are disposed of in the same manner as an 85 year old person who died of old age. burial or cremation. However, one must also note that this ruling is not a judgement on abortion per se, but rather gives permission for creating obstacles and creating difficulties for women to pursue their Constitutional (under Roe v. Wade and Casey v. Planned Parenthood) right to an abortion.

The average funeral in the United States costs $8,700. This represents a big expense for a woman and her doctor/clinic to undertake. Considering that an outpatient abortion is about $500, adding several thousand dollars to the costs could be a coercive factor in whether to have an abortion. Thus, while the Court technically did not rule on abortion, they did give a pass to onerous and expensive obstacles through which a woman must now navigate. For a woman of higher socioeconomic status, the cost is still significant, but she likely has the means to travel to another state with more liberal laws that do not require burial. For women of lower socioeconomic status, this requirement could mean that they cannot possibly afford an abortion. Consider that minimum wage in Indiana is $7.25. That means, on the low end, one has to work 1,103.45 hours (in a scenario where a worker gets all of that money and none is paid to taxes or other deductions) to afford the disposition. In other words, it would be over six months’ worth of salary (at 40 hours a week and without taxes or deductions). And if that woman were to head out of state for the procedure, she would not be earning for her days away and could potentially lose her job.

Proponents of abortion burial bills say that it is about upholding the dignity and respect of a human life. The headline of LifeNews sums this perspective, “Supreme Court Upholds Pro-Life Law Requiring Proper Burial or Cremation for Babies Killed in Abortions.” Such laws derive from the “fake news” video and media campaign of trying to prove that Planned Parenthood was selling abortion remains. The videos were altered and Planned Parenthood has never illegally sold remains. Thus, although this ruling was not strictly about the permissibility of abortion, it is a ruling that gives weight to the notion of embryo and fetus as full human being, and it is a ruling that allows even more intrusive and expensive barriers to choosing abortion.

The reality is that this ruling will not decrease the number of abortions. It will simply decrease the number of safe, medically supervised abortions. Women may travel to other states. Women may try folk remedies (that may maim or kill). Or they may use mail order for their medicated abortion pills. AidAccess is one of several companies that will discretely mail the pills to any woman in the U.S.  The cost ranges from $95-$360. For most of these mail order options, the patient is on her own with no physician oversight. If one seeks an abortion at an Indiana clinic, that clinic and doctor are required to report the abortion and the requirement for a burial. But what happens in one’s own home is one’s own business (though the law still technically requires burial or cremation).

The question remains as to what this ruling means for the Texas law and a similar one in Louisiana, both of which had been enjoined. The current ruling might be very narrow—applying only to Indiana, or it may open the doors for new states to adopt similar statutes. I suspect we will see a number of these proposed in new legislative sessions. Reports are that the Texas is planning to appeal the ruling against their law to the U.S. Supreme Court.

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