Faith Groups: Texas ‘Ignored and Disrespected’ Religious Freedom in Passing Fetal Burial Law

It’s been years since Dr. Karen Swenson stopped doing miscarriage management at Seton, a Catholic hospital in Austin. That’s because of Seton’s longtime but largely unknown policy mandating the burial of fetal remains after miscarriages. Swenson, an OB-GYN for more than 30 years, says the mandate caused patients enormous distress. In one case, a Muslim patient learned about the burial policy as she was about to go into surgery; she put the procedure on hold while she waited for permission from her imam. Instead of sending her patients to Seton, Swenson now directs them to other Austin-area hospitals that don’t have a burial diktat.

But in 2017, Swenson watched as the Texas Legislature passed a law that requires the burial or cremation of fetal remains from abortions and miscarriages at medical facilities. Abortion providers quickly sued to block the law, which a federal judge has done. But the state appealed the ruling to the Fifth Circuit. Swenson worries that the requirement could eventually become the norm for patients across Texas. Among other objections, opponents argue that the law is an imposition of a particular religious practice, forcing patients to choose between medical care and their personal beliefs. Indeed, U.S. District Judge David Ezra, who blocked the law in September, wrote that “at best, enshrining the State’s view of pregnancy increases the grief, stigma, shame, and distress of women experiencing an abortion, whether induced or spontaneous.”

A brief filed by a coalition of faith groups argues that the requirements “purportedly honor dignity of the unborn at the expense of the dignity of the women whose religious and personal freedom they curtail.” Yet conservative state leaders, generally crusaders for religious liberty, are arguing that religious-freedom concerns aren’t relevant.

“This is about the dignified disposition of fetal remains, nothing more,” Darren McCarty, a lawyer with Attorney General Ken Paxton’s office, told a federal judge in July. “It doesn’t require a mourning ritual, religious or otherwise. … Women’s experience doesn’t change at all.”

In court filings, Paxton’s attorneys go further, arguing that strong beliefs about government regulations — on marijuana, taxes, guns — don’t exempt people from abiding by them. “Even religious beliefs, which have explicit constitutional protection, do not exempt individuals from compliance with neutral, generally applicable laws,” Paxton states in one filing. (Yes, the same Paxton who wants to exempt bakers from selling wedding cakes to LGBTQ couples and supports allowing employers to skirt contraceptive mandates — all in the name of religious liberty.)

“Plaintiffs would have the Court grant greater protection to beliefs about unborn life than that afforded to religion,” the state’s brief continues, implying that the two are mutually exclusive. Paxton’s office did not respond to requests for comment.

Religious leaders say the controversial law imposes a particular religious blueprint on fundamental faith questions, such as when life begins and how to mourn the dead. “This law stands out in the way in which it both targets and does not take account of many religious traditions,” said Saul Shapiro, a lawyer representing the religious organizations that filed the brief.

The common view in Islamic tradition, according to the brief, is that a fetus becomes a person 120 days after conception, though some Muslims believe it occurs earlier. Cremation is generally prohibited, as it “evokes images of hell and punishment,” the brief states. In Orthodox Judaism, the fetus is considered “mere fluid” for the first few weeks after conception; Jewish tradition requires people to be buried with body parts intact. Different Christian denominations have a wide array of beliefs around when life begins. The scattering of ashes, though permitted under the Texas law, is not considered “dignified” by the Catholic Church.

The state’s proposals for easing the logistical burdens of the law may only exacerbate the infringement on religious freedom. For example, the Texas Catholic Conference of Bishops has offered to bury the remains at Catholic cemeteries. The state health department’s “registry” of organizations willing to offer free or low-cost burials lists 12 Catholic cemeteries. Burying the tissue according to a particular religion’s practices is a “gross intrusion on women’s religious freedom,” the brief states. At Assumption Cemetery in Austin, Seton buries fetal remains under headstones reading “baby angels,” sometimes inscribed with an image of the Virgin Mary and blessed by a chaplain.