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Judge Asks If Texas Fetal Remains Rules Override Current Law

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AUSTIN, Texas (CBSDFW.COM/AP) — A federal judge appears to be casting doubt on the legality of hotly debated Texas rules requiring burial or cremation of fetal remains, questioning Wednesday whether they would override separate, existing state laws on scattering ashes.

Health department regulations in the country's second-largest state are seeking to protect "human dignity" by banning the disposal of remains from abortions and miscarriages as biological medical waste — usually meaning they are incinerated and deposed of in sanitary landfills. National advocacy groups who sued to stop the rules contend they don't provide any public health benefits and instead seek to shame women who undergo abortions and make it tougher for doctors to perform them.

The rules would have taken effect last month, but U.S. District Judge Sam Sparks put them on hold while he considers the lawsuit. Sparks is hearing evidence before making a more-binding decision. Federal courts already blocked similar measures in Louisiana and Indiana.

Sparks has suggested the rules could supersede established Texas law that allows scattering of ashes on any private property with owner's consent, which could include landfills. Texas Attorney General Ken Paxton's office says that law applies only to human remains and not specifically to fetal tissue — a distinction that Sparks pressed state lawyers on Wednesday during a hearing in Austin.

"Fetal tissue is not human remains for the purposes of this statute," John Langley, an assistant Texas attorney general, told the judge.

"It's the official doctrine of the state that fetal tissue is not human remains," Sparks responded. "So you're bringing dignity to non-human remains?"

It's a potentially important point because the Texas health department says the rules are meant to "protect the public by preventing the spread of disease while also preserving the dignity of the unborn in a manner consistent with Texas laws." Texas has some of the nation's toughest anti-abortion measures, as evidenced by last summer's U.S. Supreme Court ruling striking down much of a 2013 law that would have left Texas with 10 abortion clinics, down from more than 40 in 2012.

Attorney General Ken Paxton released the following statement on Wednesday's disposition hearing:

"I am confident in our arguments today and in the constitutionality of these rules. Texas values the dignity of the remains of the unborn and believes that fetal tissue should be disposed of properly and humanely. I look forward to the court upholding the rules on January 27."

Also Wednesday, the state called Jeffrey Bishop, a medical ethics professor at Saint Louis University who said "the state has a responsibility to uphold the dignity of human beings. "

Even as the legal fight over the health department rules rages, top Republican state lawmakers have pre-filed bills to codify them into formal Texas law after the Legislature reconvenes next week.

The groups suing say cremation, and especially burial, would cost more and force women to cover the additional expenses. Exactly how much more isn't clear, though some estimates have put the figure at an extra $400 per fetus — perhaps doubling the existing costs of abortion.

The state argues that those estimates assume individualized burial or cremation being required for each fetus when the rules would instead allow groups of remains to be collected for mass burial or cremation, thus lowering the cost to perhaps less than an additional $0.60 per patient.

The Texas Catholic Conference of Bishops says it will offer free burial for remains from abortions and miscarriages regardless of the religious beliefs of the families involved.

Jennifer Carr Allmon, executive director of the Conference of Bishops, testified that the offer would apply in at least 15 Catholic cemeteries across Texas. She also repeatedly referred to "human remains," saying: "We have the necessary resources for the burial of the children." State lawyers later clarified that her calling the fetal remains human "wasn't a legal term of art."

"I'm not a lawyer," Allmon said.

(©2017 CBS Local Media, a division of CBS Radio Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)

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