Whole Woman's Health v. Smith

Decision Date05 September 2018
Docket NumberCause No.: A-16-CV-01300-DAE
Citation338 F.Supp.3d 606
Parties WHOLE WOMAN'S HEALTH, Whole Woman's Health Alliance, Dr. Bhavik Kumar, Brookside Women's Medical Center PA d/b/a Brookside Women's Health Center, Dr. Lendol L. Davis, and Alamo City Surgery Center PLLC d/b/a Alamo Women's Reproductive Services, Plaintiffs, v. Charles SMITH, Executive Commissioner of the Texas Health and Human Services Commission, in his official capacity, Defendant.
CourtU.S. District Court — Western District of Texas

Autumn Katz, Caroline Sacerdote, Pro Hac Vice, Molly Duane, Pro Hac Vice, Center for Reproductive Rights, David P. Brown, Stephanie Toti, Juanluis Rodriguez, Pro Hac Vice, The Lawyering Project, Dipti Singh, Lawyering Project, Los Angeles, CA, Morrison & Foerster, LLP, Francesca G. Cocuzza, Pro Hac Vice, Morrison & Foerster LLP, New York, NY, Jan Soifer, Law Office, Patrick J. O'Connell, Law Offices of Patrick J. O'Connell PLLC, Austin, TX, Emily B. Nestler, Pro Hac Vice, Center for Reproductive Rights, Washington, DC, for Plaintiffs.

Adam Arthur Biggs, Kara Holsinger, David Austin Robert Nimocks, Beth Klusmann, Benjamin S. Walton, Darren L. McCarty, Office of the Attorney General, Austin, TX, for Defendant.



Before the Court is the above-styled and numbered action. Plaintiffs, women's healthcare providers in Texas,1 bring this action against Defendant Charles Smith, in his official capacity as the Executive Commissioner of the Texas Health and Human Services Commission, challenging the constitutionality of Texas laws concerning the disposal of embryonic and fetal tissue remains. In particular, Plaintiffs challenge certain provisions of Chapter 697 of the Texas Health and Safety Code (§§ 697.001 –.004, 697.007–.009) as well as associated implementing rules ( 25 Texas Administrative Code §§ 138.1 – .7 ) (collectively, the challenged laws). On July 16, 2018, the Court began a bench trial in this case that concluded on July 20, 2018. After careful consideration of the trial testimony and its credibility, the exhibits, arguments by counsel, post-trial briefing, the governing law, and the file as a whole, the Court enters the following findings of fact and conclusions of law.

I. Abortions and Miscarriages in Texas

Each year, there are approximately 80,000 miscarriages and 55,000 induced abortions in Texas. Pls.' Ex. 130; Tr. Vol. 4, 47:21–24.2 An abortion may be induced through a surgical procedure (surgical abortion) or by taking medication (medication abortion). See, e.g. , Tr. Vol. 1, 197:17–198:1. Generally, a physician performs a surgical abortion in a licensed healthcare facility while a patient consumes, at home, medication provided by a physician for a medication abortion. See id. However, an incomplete medication abortion may require surgical follow-up. See Tr. Vol. 1, 218:2–20. Annually, there are approximately 5,800 medication abortions in Texas. See Pls.' Ex. 130 at 2.

Expert and witness testimony at trial reveals that the line between miscarriage and abortion can be less than precise. Also called a spontaneous abortion, a miscarriage is generally defined as the spontaneous loss of a pregnancy before viability. See Tr. Vol. 4, 47:11–14. However, a miscarriage can be missed. See, e.g. , Tr. Vol. 4, 35:19–36:2. Abnormalities in fetal development can occur rendering a fetus incompatible with life, but a woman's body nevertheless maintains the pregnancy. See Tr. Vol. 2, 140:14–20, 185:15–21. Alternatively, a woman may have an incomplete miscarriage where the pregnancy is terminated, but the uterus retains some or all tissue from the pregnancy. See Tr. Vol. 4, 35:19–36:2. These situations require medical or surgical intervention.3 See id.; Tr. Vol 2, 181:11–182:12.

The vast majority of abortions and miscarriages occur in the embryonic stage of pregnancy, which runs from fertilization to approximately eight to ten weeks into the pregnancy. At approximately eleven weeks following a woman's last menstrual period (Imp), the embryo is termed a fetus. Tr. Vol. 5, 11:18–25. In 2015, 88.6% of abortions occurred before eleven weeks Imp. Likewise, approximately 80% of miscarriages occur in the first thirteen weeks Imp. Tr. Vol. 4, 47:16–20.

II. Medical Waste Disposal from 1989 to 2016

In 1989, Texas adopted rules governing the treatment and disposal of human waste such as body fluids and microbiological or pathological waste. 14 Tex. Reg. 1457, 1457–62 (adopted Mar. 14, 1989) (Tex. Dep't of Health, Definition, Treatment, and Disposition of Special Waste from Health Care Related Facilities), amended by Act of June 6, 2017, 85th Leg., R.S., ch. 441, 2017 Tex. Sess. Law Serv. 1165 (former 25 TEX. ADMIN. CODE §§ 1.132 – 1.137 ). Under the 1989 rules, Texas law treated embryonic and fetal tissue as pathological waste. Id. Texas healthcare facilities could use any of the following seven methods to dispose of human tissue, regardless of whether the tissue resulted from "surgery, labor and delivery, autopsy, embalming, or a biopsy" or a "spontaneous or induced human abortion[:]"

(I) grinding and discharging to a sanitary sewer system;
(II) incineration followed by deposition of the residue in a sanitary landfill;
(III) steam disinfection followed by interment;
(IV) interment;
(V) moist heat disinfection followed by deposition in a sanitary landfill;
(VI) chlorine disinfection/maceration followed by deposition in a sanitary landfill; or
(VII) an approved alternate treatment process, provided that the process renders the item as unrecognizable, followed by deposition in a sanitary landfill.

Id. After adoption of the 1989 rules, Texas's medical waste disposal scheme remained largely unchanged for over twenty-five years.

III. 2016 Revisions to the Medical Waste Rules

In 2016, the Texas Department of State Health Services (DSHS) modified the medical waste disposal rules. Final revisions to the medical waste disposal rules were adopted on December 9, 2016, and were set to take effect on December 18, 2016. 41 Tex. Reg. 9709, 9709–9741 (Dec. 9, 2016). The revisions created a new term, "fetal tissue," defined as "[a] fetus, body parts, organs or other tissue from a pregnancy" and not including "the umbilical cord, placenta, gestational sac, blood or body fluids." Id. The revisions limited disposal of fetal tissue to three methods regardless of gestational age: interment, incineration followed by interment, or steam disinfection followed by interment. Id.4 Although the modified rules did not, on their face, prohibit the disposal of ashes from cremation of "fetal tissue" in a sanitary landfill, DSHS took the position that the modified rules prohibited placement of cremated fetal tissue in a landfill. See Dkt. # 49 at 12.

IV. Filing of this Case and First Preliminary Injunction

On December 12, 2016—three days after the final 2016 revisions were published and six days before they were set to take effect—Plaintiffs filed this lawsuit challenging the constitutionality of the revisions to the medical waste rules.5 See Dkt. # 1. The case was assigned to the Honorable Sam Sparks, who temporarily enjoined the revisions pending further review.

Beginning January 3, 2017, Judge Sparks held a two-day evidentiary hearing and subsequently entered a preliminary injunction prohibiting the revisions from taking effect until a full trial on the merits could be held. DSHS appealed the preliminary injunction to the Fifth Circuit Court of Appeals, and Judge Sparks stayed the case pending a decision from the appellate court.

V. Texas Senate Bill 8

While appeal of the preliminary injunction was pending, Texas enacted Texas Senate Bill 8 (SB 8). See Act of June 6, 2017, 85th Leg., R.S., ch. 441, 2017 Tex. Sess. Law Serv. 1165 (West). SB 8 contained numerous restrictions on pregnancy-related medical care, including a ban on the most commonly performed second-trimester abortion

, which a court in this district previously ruled facially unconstitutional. Whole Woman's Health v. Paxton (Whole Woman's Health II) , 280 F.Supp.3d 938 (W.D. Tex. 2017), appeal docketed , No. 17–51060 (5th Cir. Dec. 1, 2017).

Most significant here, SB 8 created a new chapter in the Texas Health and Safety Code, Chapter 697, modifying Texas's rules for embryonic and fetal tissue disposal. SB 8 § 13. The sole stated purpose of Chapter 697 is to "express the state's profound respect for the life of the unborn by providing for a dignified disposition of embryonic and fetal tissue remains." TEX. HEALTH & SAFETY CODE § 697.001.

To achieve this purpose, Chapter 697 defines a new category of tissue, "embryonic and fetal tissue remains" as:

an embryo, a fetus, body parts, or organs from a pregnancy that terminates in the death of the embryo or fetus and for which the issuance of a fetal death certificate is not required by state law. The term does not include the umbilical cord, placenta, gestational sac, blood, or body fluids.

Id. § 697.002(3). Chapter 697 removes this new category of waste from the definition of pathological waste and creates different disposal requirements for it. Id. § 697.003. Specifically, under § 697.004, a Texas healthcare facility "that provides health or medical care to a pregnant woman shall dispose of embryonic and fetal tissue remains that are passed or delivered at the facility" by:

(1) interment;
(2) cremation;
(3) incineration followed by interment; or
(4) steam disinfection followed by interment.

Id. § 697.004(a). Any ashes resulting from cremation of embryonic and fetal tissue remains "(1) may be interred or scattered in any manner as authorized by law for human remains; and (2) may not be placed in a landfill." Id. § 697.004(b).

In addition to restricting fetal tissue disposal, Chapter 697 requires DSHS to establish and maintain a registry (the Registry) of "participating funeral homes and cemeteries willing to provide free common burial or low-cost...

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