Whole Woman's Health v. Smith
This text of 338 F. Supp. 3d 606 (Whole Woman's Health v. Smith) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
DAVID ALAN EZRA, SENIOR UNITED STATES DISTRICT JUDGE
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 *613certain 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.
Background
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.
(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.
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.
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.
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DAVID ALAN EZRA, SENIOR UNITED STATES DISTRICT JUDGE
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 *613certain 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.
Background
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.
(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.
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.
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 *615of 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,
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.
(1) interment;
(2) cremation;
(3) incineration followed by interment; or
(4) steam disinfection followed by interment.
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 private burial" and "private nonprofit organizations that register with the department to provide financial assistance for the costs associated with burial or cremation of the embryonic and fetal tissue remains of an unborn child."
Although the entirety of SB 8 took effect September 1, 2017, SB 8 established a variety of effective dates for Chapter 697.
*616SB 8 §§ 18-19, 22. SB 8 mandated that HHSC "adopt any rules necessary to implement" Chapter 697 by December 1, 2017.
Penalties for failure to comply with Chapter 697 include suspension or revocation of a healthcare facility's license, a civil penalty of $1,000 for each violation, and payment of the State's expenses to enforce a civil penalty via suit. TEX. HEALTH & SAFETY CODE §§ 697.007 -.008.
VI. Second Preliminary Injunction
On December 6, 2017, the Fifth Circuit dismissed the appeal of the preliminary injunction in light of an unopposed motion to dismiss filed by DSHS. Dkt. # 80. Judge Sparks then transferred this case to the undersigned. The Court subsequently lifted the stay and Plaintiffs filed an amended complaint alleging both Chapter 697 and the 2016 revisions violate Plaintiffs' due process and equal protection rights under the Fourteenth Amendment as well as the Commerce Clause. Dkt. # 84; Dkt. # 93 ¶¶ 105-12. Shortly thereafter, Plaintiffs filed their second preliminary injunction motion, asking the Court to enjoin Chapter 697 from taking effect.
On January 29, 2018, the Court granted limited injunctive relief to preserve the status quo, prohibiting only the provisions of Chapter 697 and any associated implementing rules restricting the disposition of embryonic and fetal tissue remains from taking effect. Dkt. # 110. The Court sought to protect its ability to render a meaningful decision following the full presentation of evidence at a bench trial.
VII. Regulatory Developments
On January 26, 2018-four days before SB 8's provisions governing embryonic and fetal tissue remains disposal were intended to take effect and almost two months after the deadline set by the Texas Legislature-HHSC published the final version of the rules necessary to implement Chapter 697.
For instance, the rules define healthcare facility to include ambulatory surgical centers, abortion clinics, facilities that provide emergency medical services, "professional offices, including the offices of physicians," and "other health care-related facilities that provide health or medical care to a pregnant woman." 25 TEX. ADMIN. CODE § 138.2(13). Furthermore, the rules exempt from Chapter 697's application embryonic and fetal tissue expelled or removed from the human body once the woman is outside of a healthcare facility, in vitro tissue cultures, embryonic and fetal tissue remains of a single pregnancy transferred to a licensed funeral director with consent of the authorized person, and placentas designated for sale and obtained from a licensed hospital or birthing center, among other items.
In addition, the rules require any facility that receives embryonic and fetal tissue remains for treatment to "maintain records to document the methods and conditions of treatment" as well as "ensure the reduction of microbial activity of any embryonic and fetal tissue remains."
Finally, on June 27, 2018, the TCEQ adopted new rules permitting licensed crematories to dispose of embryonic and fetal tissue remains.
VIII. Subsequent Procedural History
In granting Plaintiffs' second preliminary injunction and in an effort to quickly proceed to trial on the merits as requested by both parties, the Court referred this case to United States Magistrate Judge Andrew W. Austin to enter an expedited scheduling order and discovery schedule. The Court also referred nondispositive discovery matters to Magistrate Judge Austin. In consultation with the parties and this Court, Magistrate Judge Austin set the close of discovery for June 15, 2018, and trial for July 16, 2018. Dkt. # 115.7
On March 1, 2018, the State identified Ms. Jennifer Carr Allmon, executive director of the Texas Catholic Conference of Bishops (TCCB), as a trial witness. TCCB is a not a party to this suit. However, TCCB, an unincorporated ecclesiastical association that furthers the religious ministry of the Roman Catholic Bishops and Archbishops in the State of Texas, has publicly announced the Catholic Church is offering free burial for embryonic and fetal tissue remains in cemeteries across the state.
During discovery, Plaintiffs served a subpoena for documents on TCCB. Despite an agreement to limit the scope of the subpoena, Plaintiffs and TCCB were unable to agree on what documents should be produced. Ultimately, TCCB produced emails sent or received by Ms. Allmon that were sent to or received from an external email address and included key search terms. TCCB withheld the corresponding internal emails, asserting that the internal emails were privileged under the First Amendment and irrelevant and that production was burdensome. In a second motion to quash Plaintiffs' subpoena filed four days before the close of discovery, TCCB objected to production of these emails.8 Dkt. # 150.
*618On June 13, 2018, Magistrate Judge Austin held a hearing and subsequently issued an order denying TCCB's second motion to quash. Dkt. # 161. TCCB appealed Magistrate Judge Austin's order to this Court. Following a thorough review of Magistrate Judge Austin's order, the parties' briefing, a recording of the hearing, and a sampling of the allegedly privileged emails themselves, the Court concluded the Magistrate Judge's order was not clearly erroneous or contrary to law. The Court therefore denied TCCB's appeal.9 Dkt. # 168.
Almost a month later, while the Court was conducting the pretrial conference for this case on the Friday before trial, the Fifth Circuit issued a ruling reversing denial of TCCB's motion to quash and indicated an opinion was forthcoming. Dkt. # 212. The Sunday evening before trial, the Fifth Circuit issued its opinion concerning TCCB's motion to quash. Dkt. # 223. Avoiding constitutional questions such as whether TCCB's emails were privileged under the First Amendment, the Fifth Circuit ruled the Court misapplied Federal Rule of Civil Procedure 45(d) by failing to consider the burdens of production on TCCB.10
Without the opportunity for additional discovery following the Fifth Circuit ruling, this case proceeded to trial. Several joint stipulations restricted the issues for trial. See Dkt. # 221. Most importantly, the parties agreed neither party would present evidence regarding the monetary cost of complying with the challenged laws or argue the challenged laws were unconstitutional due to any monetary costs of compliance. Id. at 1-3. With such stipulations in place, the Court conducted a one-week bench trial. Following trial, the Court requested closing argument briefs in place of oral closing arguments and the parties complied. The Court now analyzes Plaintiffs' claims and the parties' arguments.
Analysis
Plaintiffs claim the challenged laws impose onerous, unjustified, and medically unnecessary burdens on women seeking miscarriage management, ectopic pregnancy treatment, and abortion care in Texas in violation of the Due Process Clause of the Fourteenth Amendment. Plaintiffs also allege the challenged laws violate Plaintiffs'
*619right to equal protection under the law as guaranteed by the Equal Protection Clause of the Fourteenth Amendment by requiring healthcare facilities to dispose of embryonic and fetal tissue differently from other types of tissue.11 On these bases, Plaintiffs request a declaratory judgment that the challenged laws are unconstitutional as well as a permanent injunction preventing Defendant from enforcing the challenged laws.
Defendant contends the Texas Legislature appropriately expressed its respect for unborn life, which Defendant asserts is a legitimate state interest, in promulgating the challenged laws. According to Defendant, the challenged laws do not create a substantial obstacle to abortion access and rationally further the State's interest. Thus, Defendant argues the Court should deny Plaintiffs' claims and find the challenged laws a constitutional exercise of the Texas Legislature's authority.
Before fully engaging with Plaintiffs' claims and the parties' arguments, the Court pauses to highlight the unique nature of this case. The challenged laws govern the disposal of embryonic and fetal tissue remains from all pregnancies less than twenty weeks in duration where the tissue is passed or delivered at a Texas healthcare facility that provides health or medical care to a pregnant woman. See TEX. HEALTH & SAFETY CODE § 697.004. The challenged laws apply regardless of whether a woman sought an abortion or merely had a spontaneous miscarriage at the Texas healthcare facility. See id. The challenged laws are not limited to healthcare facilities that predominately provide pregnancy-related care. Instead, the challenged laws broadly define healthcare facility to include ambulatory surgical centers, hospitals, "professional offices, including the offices of physicians," and "other health-care related facilities that provide health or medical care to a pregnant woman." See TEX. ADMIN. CODE § 138.2(13). Consequently, if embryonic and fetal tissue remains are passed at any facility providing health or medical care to a pregnant woman, the facility has a legal obligation under the challenged laws to inter or scatter the ashes of the tissue. See TEX. HEALTH & SAFETY CODE § 697.004.
A simple hypothetical illustrates the sweeping effect of the challenged laws. If a pregnant woman (anywhere from one week to twenty weeks pregnant) visits an ophthalmologist's office and miscarries while in the office due to a medical emergency, that office has a legal obligation to inter or scatter the ashes of the embryonic or fetal tissue in accordance with the challenged laws. While such a scenario is unlikely, it is likely that a woman experiencing pain due the onset of a miscarriage may well visit a healthcare facility that is unprepared to comply with the challenged laws.
Thus, enforcement problems aside, the challenged laws potentially affect every pregnant woman in the State of Texas (notably including those opposed to abortion) who seeks health or medical care as well as the professionals who offer them that care. Therefore, questions broader than whether the challenged laws impose an undue burden on abortion access or *620deprive Plaintiffs of equal protection of the laws besiege this case. In addition, also unique to this case, Plaintiffs have waived the argument that the cost of complying with the challenged laws would be an undue burden on a woman seeking an abortion and Defendant does not argue the challenged laws serve a health purpose.
Having noted key distinctive features of this case, the Court turns to Plaintiffs' claims.
I. Due Process Claim
For over forty years, courts have recognized the "[c]onstitutional protection of the woman's decision to terminate her pregnancy [that] derives from the Due Process Clause of the Fourteenth Amendment." See Planned Parenthood of Se. Pa. v. Casey ,
In Casey , a plurality of the Supreme Court reaffirmed Roe's essential holding, stating three principles:
First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
From these principles, Casey "struck a balance," articulating the undue burden standard. Gonzales ,
In Whole Woman's Health v. Hellerstedt (Whole Woman's Health I) , the Supreme Court confirmed courts are to apply the undue burden standard when evaluating potential restrictions on abortion. See *621--- U.S. ----,
A. Jurisdictional Issues
Before delving into the merits of Plaintiffs' undue burden claims, the Court must address Defendant's argument that the Court lacks jurisdiction over those claims. Specifically, Defendant asserts Plaintiffs lack third-party standing to bring undue burden claims on behalf of their patients and, even if Plaintiffs possess standing, the undue burden claims asserted here are not yet ripe.
First, the Court finds Plaintiffs have standing to bring undue burden claims on behalf of their patients. "[T]hird-party standing requires the named plaintiff to have suffered an injury in fact and to share a 'close' relationship with third-parties who face an obstacle inhibiting them from bringing the claim on their own behalf." Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott ,
Here, the two physician plaintiffs, Drs. Kumar and Davis, have standing to assert undue burden claims on behalf of their patients: (1) these physicians face potential administrative and criminal penalties for failing to comply with the challenged laws; (2) they are doctors who perform abortions and share a sufficiently close relationship with their patients; and (3) "a pregnant woman seeking to assert her right to abortion faces obvious hindrances in timely now bringing a lawsuit to fruition."13 See
Defendant disputes whether the physician plaintiffs share a close enough relationship with their patients to assert their patients' beliefs. However, during trial Plaintiffs presented considerable evidence that the physician plaintiffs, like other doctors who provide abortion and miscarriage care, regularly communicate with their patients about the abortion decision and that decision's social, cultural, and psychological implications. See, e.g. , Tr. Vol. 1, 201:19-202:9, 205:22-206:21, 224:23-226:7; Tr. Vol. 2, 199:2-201:17; see also Tr. Vol. 3, 83:14-84:14. Plaintiffs also supplied evidence the physicians discuss fetal tissue disposal with their patients when the issue *622is raised. See, e.g. , Tr. Vol. 1, 208:19-211:14; Tr. Vol. 2, 196:8-11, 198:8-21; see also Tr. Vol. 3, 84:15-86:25. It is hard to imagine a more intimate doctor-patient scenario than that described by Plaintiffs here. Plaintiffs have therefore demonstrated they have a sufficiently close relationship with their patients to assert claims based on, in part, their patients' beliefs. See Singleton v. Wulff ,
As an additional component to its overarching standing argument, Defendant argues Plaintiffs have not shown their patients have uniform personal beliefs and thus Plaintiffs cannot show their legal position aligns with their patients' beliefs. But Plaintiffs do not argue their patients hold a uniform set of beliefs about fetal tissue disposal. Quite the contrary, Plaintiffs contend their patients hold a diverse set of beliefs and the challenged laws would infringe on some of those beliefs. Because Plaintiffs have shown a relationship permitting them to give voice to these concerns as well as others, Plaintiffs have sufficient standing to bring the instant undue burden claims on their patients' behalf.
Turning to Defendant's ripeness argument, the Court also finds Plaintiffs' undue burden claims are ripe. Ripeness is a prudential doctrine designed to prevent courts from "entangling themselves in abstract disagreements over administrative policies" and to "protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Nat'l Park Hosp. Ass'n v. Dep't of Interior ,
"A challenge to administrative regulations is fit for review if (1) the questions presented are purely legal ones, (2) the challenged regulations constitute final agency action, and (3) further factual development would not significantly advance the court's ability to deal with the legal issues presented."
But the inevitability of the application of the challenged laws to Plaintiffs supports deciding constitutionality before the laws are implemented. See Pearson v. Holder ,
B. Legitimate State Interest
A law that does not further a legitimate or valid state interest fails the undue burden test. See Whole Woman's Health I ,
The stated purpose of the challenged laws "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. The parties do not genuinely dispute that the State generally possesses a legitimate interest in regulating the disposal of embryonic and fetal tissue remains for public health purposes. But here, Defendant does not argue the challenged laws serve a public health purpose. See Dkt. # 100 ¶ 3. The resulting question becomes whether the State may, without any public health objectives, express respect for potential life after a pregnancy has ended. The answer, admittedly, is a close call.
Limited authority exists to guide this Court's inquiry. Although the Supreme Court previously examined a similar fetal disposition law, see City of Akron v. Akron Ctr. for Reprod. Health, Inc. ,
Striking down the statute, the Supreme Court declined to sever "humane" from the ordinance because it was unclear whether the city would have enacted the ordinance with the word "sanitary" alone.
Reading this language closely in the context of the opinion suggests the city had a legitimate interest in determining the sanitary disposal of fetal remains but perhaps not in mandating the burial of an embryo at the earliest stages of formation. See
Likewise, the only Fifth Circuit case concerning fetal tissue disposition also offers limited insight. In 1986, well before Casey , the Fifth Circuit examined a Louisiana statute requiring an attending physician to inform the woman, within twenty-four hours of an abortion, that she could choose to have the fetus cremated, buried, or disposed of as waste tissue. Margaret S. v. Edwards ,
The district court in that case ruled the statute "suggests to the woman that [the State] equates abortion with taking of a human life ... [and] thus penalizes those women who do exercise their constitutional right in choosing abortion." Margaret S. v. Treen ,
On appeal, the Fifth Circuit affirmed the district court's conclusion the statute was unconstitutional, albeit on narrower grounds.
Because the Fifth Circuit has not explicitly addressed whether a state has an interest in mandating or determining how fetal tissue should be disposed of for reasons other than public health objectives, the Court looks to other circuits for persuasive authority. Thus far, two circuit courts have opined on the issue of whether a state possesses a valid interest in conferring respect on fetal remains. Earlier this year, the Seventh Circuit considered a statute like the laws challenged here. See Planned Parenthood of Ind. & Ky., Inc. v. Comm'r of Ind. State Dep't of Health ,
Applying rational basis review, the Seventh Circuit found Indiana's interest in enacting the fetal tissue disposition statute was not legitimate.
By contrast, twenty-eight years ago, the Eighth Circuit found a Minnesota fetal disposition law passed constitutional muster although "the question [was] close." Planned Parenthood of Minn. v. State of Minn. ,
In sum, a review of these authorities offers no clear direction concerning the legitimacy of the State's interest in respecting fetal remains. Consequently, the Court undertakes its own analysis.
On one hand, there is support for the conclusion that the challenged laws do not advance a legitimate interest. The Supreme Court has frequently articulated the State has a legitimate interest in regulating healthcare during pregnancy and while the potential for life exists. See Gonzales ,
Moreover, a consistent theme runs through the Supreme Court's jurisprudence, present in abortion and non-abortion cases alike: a state does not have a valid interest in taking sides in a religious debate or prescribing a moral code. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n , --- U.S. ----,
Perhaps most directly at issue here is the ideal that the Constitution shields individual beliefs, such as those about the mystery of human life and about the consequences of abortion, from interference by the State. See, e.g., Casey ,
Collectively, the above-outlined considerations favor finding the State does not have a valid interest in respecting unborn life by restricting the disposal of embryonic and fetal remains.
On the other hand, authority also supports finding the State has a legitimate interest in respecting potential life, and thus it may derivatively have an interest in conferring dignity on unborn life. See Gonzales ,
In addition, under the umbrella of its police power, the State may generally regulate public morality. See Berman v. Parker ,
Consequently, while there is some authority to the contrary, this Court declines to say, as a matter of law, the challenged laws do not further a valid state interest. Cf. Whole Woman's Health I ,
C. Benefits and Burdens
The second step in the undue burden analysis requires the Court to identify the benefits conferred and the burdens imposed on abortion access and "weigh[ ] the asserted benefits against the burdens." See id. at 2309.
Benefits
Turning first to the benefits, the Court finds the challenged laws confer minimal benefits. The main benefit (indeed, perhaps the only benefit) of the challenged laws is the expression of respect for potential life via the dignified disposition of embryonic and fetal tissue remains. Defendant also argues that "any laws designed to recognize the dignity of the remains of a fetus may encourage individuals contemplating abortion to consider the impact of the procedure on the fetus." Dkt. # 240 at 26 n.18. However, the extent to which the challenged laws confer these benefits is limited.
For one thing, the degree to which the challenged laws confer a benefit by providing for a dignified disposition is qualified by the fact that "dignified" is a subjective term. Whether a particular method *628of treatment or disposition is dignified depends on the eye of the beholder. For instance, the Catholic Church generally prohibits the scattering of ashes from human remains because it views the scattering of ashes to be an undignified form of disposition. Tr. Vol. 4, 31:6-15. While the challenged laws permit the commingling of fetal remains, Catholic teaching does not accept the commingling of remains as a respectful practice. Id. at 143:14-15. Likewise, many in the Islamic tradition consider cremation to be a prohibited practice altogether. Tr. Vol. 2, 116:18-117:13. Still others see incineration and placement in a landfill or the use of a sanitary sewer as a dignified disposal method for tissue. Tr. Vol. 1, 163:3-6; Tr. Vol. 2, 215:3-14. Thus, treatment and disposition methods in general are not themselves inherently respectful or dignified. Instead, dignity and respect are conferred based on one's personal opinion of a given treatment or disposition option. Consequently, whether the challenged laws achieve the subjective benefit of expressing respect or conferring dignity-a relatively light benefit compared to protecting women's health or potential life-depends on one's perception of the prescribed treatment and disposition methods.
Nevertheless, in its attempt to achieve that subjective benefit, the State of Texas applied inconsistent criteria in determining what treatment and disposition methods confer dignity. For example, in enacting the challenged laws, Texas removed grinding from the treatment options available for embryonic and fetal tissue remains. However, the challenged laws allow cremation, which includes a secondary grinding process through which remains are processed after being exposed to extreme heat. Tr. Vol. 3, 160:20-161:20; see also TEX. HEALTH & SAFETY CODE § 716.001(5) (defining "cremation" to include "pulverization, which is the process of reducing identifiable bone fragments after cremation and processing granulated particles by manual or mechanical means"). Similarly, the challenged laws expressly prohibit the placement of embryonic and fetal tissue in a landfill but allow the ashes from these remains to be scattered on any other privately-held land, such as a parking lot or junkyard, so long as the owner consents. See Tr. Vol. 4, 214:23-216:1; Pls.' Ex. 128 at 5. And while the challenged laws exclude disposition via a sanitary sewer for healthcare providers, women at home may still use this method.16 See TEX. ADMIN. CODE § 138.3(c)(5).
In addition, the process of life and death is inherently messy and thus, at least in part, undignified. Safely disposing of human remains includes practical realities such as the need for refrigeration, appropriate containers, and appropriate embalming or processing. See, e.g. , Tr. Vol. 3, 152:8-152:18; 168:18-23; Tr. Vol. 4, 227:5-12, 235:4-11. The end of a pregnancy, be it intentional or not, is similarly messy and features similar practical realities. See, e.g. , Tr. Vol. 1, 89:4-22, 90:23-91:5, 163:16-164:7; Tr. Vol. 2, 189:19-190:15, 237:17-238:22. Thus, the ability of any particular treatment or disposition method to confer dignity is circumscribed.
*629Finally, the challenged laws likely have de minimis persuasive effect, if any at all.17 The State of Texas already employs numerous mechanisms such as a required ultrasound, heightened informed consent disclosures, and a twenty-four-hour waiting period to convey its preference for childbirth and ensure a woman fully appreciates the consequences of an abortion decision. See, e.g. , Tr. Vol. 1, 61:17-63:17, 199:22-201:18. Furthermore, the evidence presented at trial demonstrates that women are well aware of the impact a miscarriage or an abortion has on a fetus. See Tr. Vol. 1, 173:9-22, 225:3-226:7; Tr. Vol. 2, 146:22-147:10; Tr. Vol. 3, 83:16-84:1. As a result, the impact that the challenged laws may have as an additional persuasive mechanism will likely be marginal or nonexistent. The persuasive effect of challenged laws therefore adds little to the benefit analysis.
Burdens
By contrast, the Court finds the challenged laws impose significant burdens on women seeking an abortion or experiencing pregnancy loss (1) by requiring women's healthcare facilities to use unreliable and nonviable waste disposal options and thus reducing access to abortion in Texas and (2) by enshrining one view of the status of and respect that should be given to embryonic and fetal tissue remains thereby burdening a woman's abortion decision. The Court examines each of these burdens in depth below.
1. Requiring unreliable and nonviable waste disposal options
Safely and legally disposing of waste, including special waste and embryonic and fetal tissue remains, is a critical component of providing gynecological care and is typically achieved through third-party relationships with entities offering disposal services.18 See Tr. Vol. 1, 122:17-19; Tr. Vol. 3, 90:9-16; Tr. Vol. 2, 226:10-11, 194:24-25, 252:4-16; see also Tr. Vol. 2, 230:3-7. Currently, women's healthcare providers in Texas have a functional system for disposing of their special medical waste through a licensed medical waste vendor. See, e.g. , Tr. Vol. 1, 120:22-121:8; Tr. Vol. 2, 224:9-11; Tr. Vol. 3, 97:15-19; Tr. Vol. 4, 42:7-43:2. Under the present system, healthcare providers have no role in the treatment and disposal of embryonic and fetal tissue remains after collecting the remains, storing them in a freezer, and arranging pick up by a medical waste vendor. See Tr. Vol. 1, 144:13-17; Tr. Vol. 2, 21:8-22:5; Tr. Vol. 3, 93:18-25. A healthcare facility's medical waste vendor collects special waste-both tissue and non-tissue-on a regular basis, incinerates the waste, and disposes of the ash in a sanitary landfill. Tr. Vol. 1, 144:18-145:14; Tr. Vol. 2, 190:23-191:19, 225:23-226:1; Tr. Vol. 3, 79:21-80:10, 81:12-14.
Even without the effect of the challenged laws, this system for disposing of Plaintiffs' special waste is precarious at best. Plaintiffs all share a single special waste vendor, Vendor A,19 the only vendor *630known in Texas that is willing and able to work with abortion providers. Tr. Vol. 1, 118:8-23; Tr. Vol. 2, 195:1-4; Tr. Vol. 3, 80:14-20. Securing Vendor A and establishing a functional relationship was a lengthy process that included failed negotiation efforts with some vendors as well as trial and error with other vendors who proved unusable. Tr. Vol. 1, 118:8-23, 121:14-19, 138:16-139:12; Tr. Vol. 2, 225:4-5. Previously, while conducting the vendor search that resulted in the contracts with Vendor A, several clinics nearly suspended their services due to the inability to dispose of their special waste. See, e.g. , Tr. Vol. 2, 193:6-194:25.
The currently-operating system is in line with Texas law's traditional treatment of embryonic and fetal tissue remains as pathological waste, a category of special waste from healthcare facilities. See
Now, the challenged laws create a sui generis waste category; they remove embryonic and fetal tissue remains from restrictions governing pathological waste and apply some of the restrictions governing human remains. See, e.g. , TEX. HEALTH & SAFETY CODE § 697.003. Yet, embryonic and fetal tissue remains still maintain characteristics of pathological waste. Most significantly, embryonic and fetal tissue is routinely collected as a byproduct of medical procedures-abortion and miscarriage procedures-administered daily in the State of Texas. See, e.g. , Tr. Vol. 1, 141:24-142:7; Tr. Vol. 2, 189:19-190:15, 237:17-238:7. Women's healthcare facilities offering abortion and pregnancy-related care need to dispose of their accumulation of embryonic and fetal tissue regularly, weekly or every few weeks depending on the facility. See, e.g. , Tr. Vol. 2, 190:16-20; Tr. Vol. 3, 81:10-14.
While the challenged laws permit four methods of treatment for embryonic and fetal tissue remains, the laws restrict disposal to only two methods: interment and the scattering of ashes. See TEX. HEALTH & SAFETY CODE § 697.004. Interment and the scattering of ashes are both disposal methods typically used for human remains. See Tr. Vol. 2, 57:22-24; Tr. Vol. 3, 15:15-17. Neither party suggests that a new industry or waste disposal mechanism has developed or will develop to accommodate the disposal of embryonic and fetal tissue remains as required by the challenged laws. And, as analyzed below, the entities traditionally used to inter human remains or scatter their ashes are not structured or prepared to accommodate disposal of the sui generis category of embryonic and fetal tissue remains to the degree that will be required. Put another way, reliable and viable options for disposing of embryonic and fetal tissue remains in compliance with the challenged laws do not exist.
At its core, the system for disposing of human remains utilizes mechanisms providing individualized care and caters to grieving families. Funeral homes, for example, handle a limited amount of human remains and are not structured to accommodate the regularly-generated byproducts of abortion and miscarriage procedures. The managing partner of one funeral home testified that each year his *631business cares for approximately eighty-five families who have lost a loved one. Garcia Dep. Tr. 59:13-15. The managing partner further testified his funeral home has handled cremation or burial services for approximately twenty infants, a category including both fetuses and babies, during the past eleven years. Garcia Dep. Tr. 50:1-25, 59:25-60:23. Another funeral home director testified his funeral home could handle no more than 100 fetal remains per quarter, a capacity already filled by the funeral home's efforts to dispose of the embryonic and fetal tissue remains of three local hospitals. Tr. Vol 3, 168:14-169:20. The same funeral director also testified his funeral home would require embryonic and fetal remains scheduled for burial to be tagged in some manner to allow for later individual identification.20 Id. at 178:19-25. Furthermore, before contracting with an abortion clinic, his funeral home would require approval from the funeral home's directors and a guarantee that the abortion clinic would obtain the consent of each patient. Id. at 178:4-15. Such evidence demonstrates how funeral homes are not a viable option for transporting or treating embryonic and fetal tissue remains.
In addition to structural barriers, funeral homes cannot offer full compliance with the challenged laws because they do not provide disposition services. They do not scatter ashes or inter remains. See Tr. Vol. 3, 177:20-178:1; Garcia Dep. Tr. 92:1-6. Thus, funeral homes are a treatment option, providing transportation, cremation, and burial preparation. Likewise, crematoriums are only a treatment option for embryonic and fetal tissue remains as they do not scatter or inter ashes. See Tr. Vol. 4, 237:12-15; Garcia Dep. Tr. 42:22-44:11. As a result, where a healthcare provider uses a cremating facility, it must also find a disposition option. See TEX. HEALTH & SAFETY CODE § 697.004.
Therefore, if a healthcare facility uses either a funeral home or crematorium to treat waste, the healthcare facility must also transport its embryonic and fetal tissue remains to a disposition site such as a cemetery or location for scattering ashes. The challenged laws permit funeral providers, licensed medical waste transporters, and healthcare providers themselves to transport the embryonic and fetal remains. See TEX. ADMIN. CODE § 138.6. But there is no evidence these transportation options have the capacity or ability to transport the remains from the many thousands of abortions and miscarriages occurring in Texas each year to treatment and final disposition.
As with the treatment options, the disposition options for complying with the challenged laws are not reliable or compatible with the provision of healthcare services. Defendant principally points to an offer made by the Catholic Church to assist healthcare providers with the burial of embryonic and fetal tissue remains. See Tr. Vol. 4, 88:22-23; 93:17-94:5. But relying on one religious sect, the Catholic Church and its affiliated cemeteries, to honor a non-contractual promise to provide disposition services to the State of Texas is not a reliable (or conventional) option for healthcare providers required by law to inter or scatter the ashes of embryonic and *632fetal tissue remains. Due to the non-contractual nature of the offer, the Catholic Church has the right to withdraw or revise that policy at any time even though it has suggested it presently has no intent to do so. See Tr. Vol. 4, at 160:11-161:1. And given that the Catholic Church and its affiliated cemeteries oppose abortion, the Catholic Church has reason to withdraw its offer or heavily restrict its disposition services. See Tr. Vol. 2, 158:9-12; Tr. Vol 3, 120:21-23. Therefore, healthcare providers, especially abortion providers, are unable to rely on the provision of burial services by Catholic entities.21
Additionally, the Catholic Church offered no evidence it is able to bury embryonic and fetal tissue remains throughout Texas. See Tr. Vol. 3, 21:21-22:16; Tr. Vol. 4, 107:25-109:7, 140:1-141:17, 150:22-151:3. Rather, the testimony of TCCB's executive director indicates the contrary.22 The Catholic Church does not bury remains, only individual cemeteries do. Tr. Vol. 4, 140:1-141:17. The Catholic Church does not own or control all of the Catholic-affiliated cemeteries in Texas; instead, Catholic-affiliated cemeteries have a range of involvement with the Catholic Church depending on an individual cemetery's governing structure and ownership. Id. at 103:15-104:5, 152:5-21. Thus, women's healthcare providers must enter into individual contracts concerning burial services with each cemetery. Id. at 144:5-18.
In entering contracts with Catholic-affiliated cemeteries, healthcare providers can only obtain limited disposition services. Such cemeteries will not allow the scattering of ashes. Id. at 145:21-146:5. Furthermore, there is an odd divergence in what Catholic-affiliated cemeteries will contract to do and what the cemeteries may be willing to do when faced with a factual situation. For example, although the challenged laws permit the commingling of embryonic and fetal tissue remains, Catholic-affiliated cemeteries will not contract to bury commingled remains as the commingling of remains is against Catholic doctrine. Id. at 148:9-23.23 Thus, a healthcare *633provider would need to agree to individualized burial of its embryonic and fetal tissue remains, a significant logistical hurdle for both the healthcare providers and the cemeteries, to obtain consistent burial services from a Catholic-affiliated cemetery.
Defendant also points to the Registry established by SB 8 as evidence Plaintiffs can comply with the challenged laws because the Registry contains sixteen entities willing to help healthcare providers dispose of the embryonic and fetal tissue remains. However, the Court finds the Registry provides no reliable information. To enroll on the Registry, an entity must simply complete a one-page application form that requests contact information and asks the applicant to indicate whether it is willing to provide "Free or low cost transportation, burial, or cremation services," "Financial Assistance," or "Other." See, e.g. , Pls.' Ex. 63. None of these categories is defined. See id.; see also Tr. Vol. 4, 197:1-8, 198:2-16. An entity need not commit to provide any minimum quantity of services to be added to Registry. Tr. Vol. 4, 197:9-12.
No effort is undertaken to verify the accuracy of Registry applications or to check the identity of Registry applicants. Tr. Vol. 4, 196:5-197:8; Tr. Vol. 3, 117:20-120:4. The entities listed could be fabricated or unwilling to actually provide services. In fact, the director of one funeral home added to the Registry testified he mistakenly applied to the Registry because he thought applying was required to continue his current practices. Garcia Dep. Tr. 67:25-68:24, 71:16-72:6. He also testified he provided the incorrect website address for his funeral home on his Registry application. Id. at 77:1-78:5. Moreover, each of the cemeteries on the Registry is a Catholic cemetery. See Pls.' Ex. 10. As previously discussed, relying on Catholic-affiliated cemeteries is not a viable option because of dependability and feasibility concerns. Thus, the Registry presents no reliable alternatives that women's healthcare providers can use to comply with the challenged laws.
Defendant argues Plaintiffs could potentially comply with the challenged laws by using their current vendor, Vendor A. But Vendor A is a medical waste vendor that collects medical waste, incinerates it, and disposes of it in a landfill. It is not a vendor configured to maintain the segregation of embryonic and fetal tissue remains, separately incinerate these remains, and then scatter or inter the resulting ashes outside of a landfill. See Tr. Vol. 1, 121:20-122:9, 124:8-125:1.24 In an additional attempt to refute the Plaintiffs' evidence, Defendant cites evidence Texas possesses many licensed funeral homes and crematories, over 100 Catholic cemeteries, a variety of types of cemeteries, and acres of uninhabited public land as well as waterways. See Def.'s Ex. 27; Tr. Vol. 4, 90:1-10, 91:1-3, 224:22-225:1; TEX. HEALTH & SAFETY CODE §§ 711.021, 716.302, 716.304. But the State's large numbers do not refute Plaintiffs' evidence that the options for complying with the challenged laws, i.e. the mechanisms for disposing of human remains, are presently incompatible with the disposal needs of healthcare providers offering abortion and miscarriage care.
*634As an additional comment, there is some evidence that the challenged laws are part of a thinly veiled effort to further restrict abortion access in the State. Texas has a clear history of regulating abortion care. See, e.g., Whole Woman's Health I ,
Thus, as the disposal system stands today, implementation of the challenged laws would deprive healthcare providers, especially those offering abortion care, of a reliable and viable system for disposing of their embryonic and fetal tissue remains. Without a workable disposal system, healthcare providers cannot offer surgical care for miscarriages or abortions. See Tr. Vol. 2, 226:10-11. Moreover, the challenged laws would likely trigger a shutdown of women's healthcare providers unable to cobble together a patchwork of funeral homes, crematoriums, and cemeteries to meet their disposal needs. Clinic closures would further constrain access to abortion in a state where access to abortion has already been dramatically curtailed. See Whole Woman's Health I ,
2. Endorsing one viewpoint
The challenged laws also impose intrusive and heavy burdens on women whose beliefs about the status of embryonic and fetal tissue and the meaning of abortion or miscarriage diverge from the viewpoint endorsed by the State.
People hold diverse beliefs about the status of developing human life based on religion, science, culture, and personal experience.
*635The parties presented substantially contradicting testimony at trial that predictably reached opposing conclusions regarding the nature of embryos and fetuses as well as the meaning of abortion and pregnancy loss. See, e.g. , Tr. Vol. 1, 172:24-174:14, 175:8-17; Tr. Vol. 2, 36:14-22, 140:16-141:5, 175:24-176:2; Tr. Vol 5, 11:12-15; see also Casey ,
For some people, the point at which an embryo or fetus takes on a special status depends on pregnancy benchmarks, such as fertilization, quickening, viability, or birth. Tr. Vol. 3, 35:10-22; Tr. Vol. 2, 102:1-15. Others point to spiritual benchmarks, such as ensoulment. Tr. Vol. 2, 125:19-126:7, 157:6-159:6; Tr. Vol. 3, 35:7-22. Still others point to the physical characteristics of a fetus. Tr. Vol. 5, 11:12-20:20. Even within a particular religion, views vary about when embryonic and fetal tissue should be given respect. See, e.g. , Tr. Vol. 2, 115:14-25, 158:21-159:3, 159:7-16, 161:6-18. People also view a pregnancy differently depending on an array of factors such as whether the pregnancy is viable or nonviable, wanted or unwanted, intended or unintended. See, e.g. , Tr. Vol. 2, 140:8-141:5, 198:15-21; Tr. Vol. 4, 50:7-19. These views shape attitudes and beliefs about how embryonic and fetal tissue remains should be treated and disposed. See, e.g. , Tr. Vol. 2, 122:11-13, 127:5-12, 172:1-172:12; Tr. Vol. 3, 35:23-36:10.
For over twenty-five years, Texas law permitted women's healthcare providers to dispose of embryonic and fetal tissue remains in accordance with standard medical practices. See, e.g. , Tr. Vol. 1, 30:12-15, 207:20-208:18; Tr. Vol. 2, 212:4-11. And Texas's prior disposal system allowed healthcare providers to accommodate patients who expressed a desire for a particular disposition so long as that disposition complied with the State's public health and safety rules. See , e.g., Tr. Vol. 1, 30:15-19; Tr. Vol. 2, 215:15-216:11. Such a system enabled Texas to avoid entangling itself in the conflicting beliefs surrounding embryonic and fetal tissue and its disposal.
In enacting the challenged laws, Texas endorses the viewpoint that embryonic and fetal tissue remains should be afforded special status from the moment of conception and should be handled in a manner similar to human remains. See, e.g. , Tr. Vol. 2, 170:9-13; Tr. Vol. 3, 42:11-43:16. Such a viewpoint communicates strong implications about when life begins and the meaning of a miscarriage or abortion. And that state-sanctioned viewpoint goes to the heart of the liberty protected by the Fourteenth Amendment and recognized in the protection given to a woman's right to decide whether to carry a child to term. See Casey ,
Defendant argues there is no constitutional right to direct the disposition of fetal remains at a healthcare facility and this Court agrees that right does not exist. Instead, the Court merely observes the additional burdens the challenged laws impose. At best, enshrining the State's *636view of pregnancy increases the grief, stigma, shame, and distress of women experiencing an abortion, whether induced or spontaneous. Women who do not believe embryonic and fetal tissue has a special status will be required to accept the State's prescribed methods of disposition as a condition of obtaining pregnancy-related health care. The evidence produced at trial shows that when a woman disagrees with how her embryonic and fetal tissue remains will be disposed, she experiences a greater amount of grief, stigma, shame, and distress. See, e.g. , Tr. Vol. 1, 173:10-174:14; Tr. Vol. 2, 140:8-141:5. At worst, the challenged laws intrude into the realm of constitutional protection afforded to "personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it." See Casey ,
Such burdens exist regardless of the viewpoint the State endorses. Suppose, instead, Texas endorsed a different viewpoint. If the challenged laws required embryonic and fetal tissue remains to be incinerated as medical waste and placed in a landfill, Texas would be upholding a view of pregnancy that does not afford embryonic and fetal tissue remains special status and is in line with only respecting remains after birth. Women who believe differently would suffer increased grief, stigma, shame, and distress because of their inability to honor their embryonic and fetal tissue remains. And, as described above, Texas would have intruded into personal decisions concerning the meaning of procreation and human responsibility and respect for it. By involving itself in the debate over the status of embryonic and fetal tissue, Texas burdens those women whose beliefs differ from the viewpoint of the State. Thus, by endorsing one view of the status and respect to be accorded to embryonic and fetal tissue remains, the State imposes intrusive and heavy burdens upon personal decisions concerning procreation and, in particular, upon a woman's right to choose to have an abortion.
Balancing Analysis
In light of the foregoing analysis, the Court finds the challenged laws convey minimal, if any, benefits while simultaneously imposing significant burdens on pregnancy-related medical care, especially abortion access. Expressing respect for potential life via the dignified disposition of embryonic and fetal tissue remains generates a slight benefit, especially when compared with the historically recognized benefits of protecting women's health or potential life.
Comparatively, the challenged laws create heavy burdens for women seeking to access pregnancy-related medical care, not the least of which is abortion care. The lack of capable and reliable options to dispose of embryonic and fetal remains in compliance with the challenged laws would *637likely cripple the ability of healthcare providers to offer surgical abortions and thus is a substantial obstacle in the path of women seeking a previability abortion. As the disposal system is currently structured, implementation of the challenged laws would likely cause the shutdown of women's healthcare providers unable to patch together a hodgepodge of funeral homes, crematoriums, and cemeteries to meet their disposal needs. Women would experience further limited abortion access in a state where such access had already been greatly diminished. Additionally, the challenged laws intrude on the diverse personal beliefs women (and men) hold about the status of an embryo or fetus and the moral and spiritual implications surrounding an abortion or miscarriage. The challenged laws therefore impose burdens, such as a greater amount of grief, stigma, shame, and distress, on those women whose beliefs differ from the viewpoint of the State.
As a result, based on the evidence submitted at trial, the Court concludes the challenged laws impose significant burdens on abortion access that far outweigh the benefits the challenged laws confer. And given that the challenged laws do not govern the disposal of embryonic and fetal tissue remains outside of a healthcare facility, such burdens could cause women to avoid obtaining or be unable to obtain pregnancy-related medical care from a healthcare facility, particularly in more rural and remote areas where there are fewer healthcare options. Such an implication is dangerous, particularly in the context of abortion. Women without access to abortion care or who do not believe embryonic and fetal tissue remains should be afforded special status from the moment of conception might well seek an abortion outside of healthcare facilities and the doctor-patient relationship. See Tr. Vol. 1, 221:3-18.
Having found the burdens of the challenged laws substantially outweigh the benefits, the Court also applies the large-fraction test. Generally, to prevail in a challenge to an abortion regulation, a plaintiff must demonstrate that "in a large fraction of cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion." Casey ,
Here, the application of the large-fraction case is difficult to apply because the challenged laws have such a sweeping application. In theory, the challenged laws apply not only to healthcare providers offering abortion services but also apply to any healthcare facility that provides health or medical care to a pregnant woman and has embryonic and fetal tissue remains passed or delivered at that facility. If, however, the Court limits the large-fraction test to those women who seek to obtain an abortion and disregards the thousands of other women the challenged laws apply to, the class of women here consists of all women in Texas who are one week to twenty weeks pregnant and seek a surgical abortion. As for the numerator, the challenged laws constrain abortion access for the entire class because the challenged laws would likely result in the closure of facilities unable to comply and would restrict the ability of healthcare providers to offer surgical abortions. Thus, the laws would decrease all of the relevant class's healthcare options for obtaining a previability abortion. Furthermore, the challenged laws also operate as a substantial *638obstacle to all women who do not consider embryonic and fetal tissue remains to have a special status and object to interring or scattering the ashes of their embryonic or fetal tissue remains. Therefore, the Court finds the challenged laws burden, at least, a large fraction of the relevant class of women.
To summarize, the Court finds the challenged laws do not confer benefits sufficient to justify the heavy burdens on pregnancy-related medical care, particularly abortion care, that they impose. As a result, the challenged laws place a substantial obstacle in the path of women seeking a previability abortion and constitute an undue burden. The challenged laws therefore violate the Due Process Clause of the Fourteenth Amendment.
II. Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment instructs no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. To establish an equal protection claim, a plaintiff "must show that two or more classifications of similarly situated persons were treated differently." Gallegos-Hernandez v. United States ,
Here, the challenged laws apply only to embryonic and fetal tissue remains passed or delivered at a healthcare facility. TEX. HEALTH & SAFETY CODE § 697.004(a). The challenged laws do not apply to embryonic and fetal tissue remains passed outside of a healthcare facility and thus do not govern tissue passed by a woman in her home. 25 TEX. ADMIN. CODE § 138.3(c). Most notably, the challenged laws exempt in vitro tissue cultures, such as those from an IVF clinic, and embryos or fetuses sent to a variety of laboratories for testing. See id.; Dkt. # 221 ¶¶ 1-3. Thus, the challenged laws differ in their treatment of healthcare facilities and other entities possessing embryonic and fetal tissue remains, namely individual women, laboratories, and IVF clinics. Plaintiffs have therefore shown the challenged laws treat two or more classifications of similarly situated persons differently and the Court turns to determine the appropriate level of scrutiny.
A. Level of Scrutiny
Generally, classifications are subject to the rational-basis test, which means a court will uphold a legislative classification so long as the classification is rationally related to a legitimate government interest. See Gallegos-Hernandez ,
At first glance, it is unclear which level of scrutiny should be applied. This is due in part to the unorthodox facts surrounding Plaintiffs' equal protection claim, the dearth of binding authority, and, ultimately, the parties' less-than-helpful equal protection briefing. While neither party *639argues the challenged laws implicate a suspect class, the question remains whether the challenged laws implicate a fundamental right. Plaintiffs contend the classifications made by the challenged laws implicate "the fundamental right to end a pregnancy, which includes not only the right to obtain an abortion procedure, but to define one's own concept of life, meaning, and individual place in the world." Dkt. # 243 at 33. But Plaintiffs also assert that the Court need not decide whether strict or intermediate scrutiny applies because the challenged laws would fail under either level. Defendant, on the other hand, argues no fundamental right is implicated and the challenged laws should be evaluated under the rational-basis test.
There is relatively little binding authority, especially in the wake of Casey , examining equal protection claims in an abortion-related context and articulating which level of scrutiny should apply. Defendant points to Harris v. McRae in support of its argument that the rational-basis test should apply. See
Instead, the Court looks to Women's Medical Center of Northwest Houston v. Bell ,
Here, however, unlike Women's Medical Center , there is some evidence in the record of anti-abortion animus and that Texas passed the challenged laws as an attempt to limit abortion access. As this Court previously commented in analyzing Plaintiffs' due process claim, the record contains evidence the State of Texas may have intended to cause the waste disposal system surrounding abortion services to collapse. But the mere presence of some evidence of animus does not compel the Court *640to apply a different standard of review. See Romer ,
Although the Fifth Circuit in Women's Medical Center did not explicitly address the district court's through examination of what level of scrutiny to apply to post-Casey equal protection claims, this Court finds the district court's examination particularly helpful. See Women's Med. Ctr. of N.W. Hous. v. Archer ,
Like the amended complaint in Women's Medical Center , the amended complaint here does not contain an assertion of the Plaintiffs' patients' equal protection rights. Instead, the amended complaint carefully states that the challenged laws "violated Plaintiffs' right to equal protection under the law ...." Dkt. # 93 ¶ 110. And, Plaintiffs' post-trial briefing only argues the challenged laws unconstitutionally impose greater restrictions on healthcare facilities disposing of embryonic and fetal tissue remains. See Dkt # 242 ¶ 197, 199, 202. As a result, because Plaintiffs have not argued the challenged laws affect their patients' equal protection rights, they can only be asserting their own equal protection rights.27 Consequently, the Court applies rational basis review.
B. Application
"Rational basis review begins with a strong presumption of constitutional validity." Duarte v. City of Lewisville, Tex. ,
Rational basis review does not require that "a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification."
However, although it is difficult to show a law violates the equal protection clause under rational basis review, it is not impossible. See, e.g., Romer ,
Outside of a Healthcare Facility
Turning to the classifications at issue here, the Court finds the classification of "within a healthcare facility" versus "outside of a healthcare facility" is rationally related to a legitimate government interest. In exempting tissue passed outside of a healthcare facility, the Texas Legislature chose not to apply the duties of the challenged laws to individual women who undergo spontaneous or induced abortions at home. A woman at home has different and greater privacy rights than a healthcare facility. Moreover, healthcare facilities are generally better situated to comply with state disposal regulations than an individual woman. Thus, differentiating between within and outside of a healthcare facility is justified by a rational basis.
Laboratories
The Court also finds application of the challenged laws to healthcare facilities but not to pathology, crime, or research laboratories rationally promotes a legitimate objective. Through testing, evaluation, and experimentation, laboratories could destroy the embryonic and fetal tissue remains or integrate the tissue with other materials requiring different disposal methods. Thus, the Texas Legislature could have assumed that laboratories would be unable or unwilling to use embryonic and fetal tissue if required to comply with the challenged laws. As a result, requiring healthcare facilities but not laboratories to use specific methods to dispose of embryonic and fetal tissue remains survives rational basis review.
In Vitro Tissue Cultures
Finally, the Court considers the State's decision to treat healthcare facilities differently from IVF clinics. At the time of disposal, the embryos possessed by both facilities are not located in a woman's body. Furthermore, IVF clinics are a subset of healthcare facilities as defined by the challenged laws because IVF clinics are also healthcare facilities that provide health or medical care to a pregnant woman. However, the State chose to draw a line between in vitro tissue cultures (pre-implantation embryos) and post-implantation embryos and thus drew a line between the different types of facilities that handle these embryos. Compare TEX. HEALTH & SAFETY CODE § 697.002(3), with 25 TEX. ADMIN. CODE § 138.3(c).
Defendant argues the distinction is rational because after implantation "the potential for life has been more fully realized." Dkt. # 240 at 33. However, the Court can discern no legitimate state interests in distinguishing between identical tissue *642and thus between the facilities that handle that tissue because the State believes the tissue in one context previously had a greater potential for life. The philosophical or religious question of the degree of potential life in an embryo is distinct from the scientific question of whether tissue is an embryo and had the potential for life. Regardless of a state's ability to express respect for potential life via dignified disposition, the State may not compel its philosophical or religious answer concerning the degree of life present in pre-implantation compared to post-implantation embryos under current law. See Barnette ,
When applying the rational-basis test, the Court typically assumes the State "may take one step at a time, addressing itself to the phase of the problem which seems acute to the legislative mind." See Williamson v. Lee Optical ,
The Court therefore concludes the classification of pre-implantation embryos and post-implantation embryos and thus disparate treatment of the facilities that handle them does not demonstrate a rational relationship to a legitimate governmental purpose. Consequently, the challenged laws do not pass the rational-basis test and violate the Equal Protection Clause of the Fourteenth Amendment.
Conclusion
After careful analysis of current law and precedent as it exists, this Court declines to rule, as a matter of law, the State of Texas does not have a legitimate interest in enacting a well-thought-out and workable statute that accomplishes the asserted purpose of respecting potential life by providing for the dignified disposition of embryonic and fetal tissue remains. However, under United States Supreme Court precedent, such a statute may not violate the Equal Protection Clause and may not impermissibly place substantial obstacles in the path of women seeking pregnancy-related care such that it constitutes an undue burden in abortion access, violating the Due Process Clause.
Here, the Court finds the challenged laws violate both the Equal Protection and Due Process Clauses.
While the provisions that exempt women outside of a healthcare-facility context and certain laboratories from the duties of the challenged laws are rationally related to a legitimate government interest, the decision to distinguish between pre-implantation and post-implantation embryos and the facilities that handle them is not. In concluding the challenged laws' disparate treatment of healthcare facilities and IVF clinics is not rationally related to a legitimate government interest, the Court finds the challenged laws do not pass the rational-basis test and therefore violate the *643Equal Protection Clause of the Fourteenth Amendment.
Further, the challenged laws place substantial obstacles in the path of women seeking pregnancy-related medical care, particularly a previability abortion, while offering minimal benefits. By endorsing one view of the status and respect to be accorded to embryonic and fetal tissue remains, the State imposes intrusive burdens upon personal decisions concerning procreation, especially upon the right of the woman to choose to have an abortion. And most importantly, the evidence in this case overwhelmingly demonstrated that if the challenged laws were to go into effect now, they would likely cause a near catastrophic failure of the healthcare system designed to serve women of childbearing age within the State of Texas. This would not simply be a failure of the healthcare system serving women who seek to voluntarily terminate a pregnancy but also a failure of the system serving the thousands of Texas women who seek medical care for pregnancy complications and miscarriages. The simple fact is that Texas currently has no viable, integrated system in place for disposing of embryonic and fetal tissue remains in compliance with the challenged laws nor has Texas appropriated resources to insure the challenged laws operate as intended.
Instead, the clear weight of the evidence shows that the waste disposal options required by the challenged laws would cause many, if not most, doctors and healthcare facilities providing pregnancy-related care to women to be overwhelmed with embryonic and fetal tissue remains with no acceptable method of disposal. Indeed, those few state officials tasked with attempting to insure implementation of the challenged laws were relegated to asking private cemeteries, funeral homes, and crematoriums for help. With the exception of a non-contractually binding offer from the Catholic Church in Texas that it would do what it could, little else was forthcoming. The Court in this order discusses the many issues that make this offer, although well intended, problematic and presently unworkable in light of the numerous unresolved logistical problems. Therefore, the Court finds the challenged laws have the effect of placing substantial obstacles in the path of a woman's right to choose an abortion and thus violate the Due Process Clause of the Fourteenth Amendment.
Based on the foregoing, the Court DECLARES Texas Health and Safety Code §§ 697.001 -.004, 697.007-.009 and the associated implementing rules codified at Title 25 of the Texas Administrative Code §§ 138.1 - .7 are VOID for violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. The Court also ENTERS A PERMANENT INJUNCTION prohibiting Defendant Charles Smith, in his official capacity as the Executive Commissioner of the Texas Health and Human Services Commission, from enforcing Texas Health and Safety Code §§ 697.001 -.004, 697.007-.009 and the associated implementing rules codified at Title 25 of the Texas Administrative Code §§ 138.1 - .7. The Clerk's Office is instructed to ENTER JUDGMENT and CLOSE this case.
IT IS SO ORDERED.
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