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Judge Strikes Texas Fetal Abortion Law

By William Vogeler, Esq. on September 11, 2018 | Last updated on March 21, 2019

A high-profile feud over abortion laws continues in Texas, where a judge stopped -- again -- a law that would require abortion providers to bury or cremate fetuses.

The fetal burial law, set to take effect in February, applies to abortions, miscarriages, and ectopic pregnancies. The decision was a defeat for lawmakers and the state Attorney General's Office, which defended the statute in Whole Women's Health v. Smith.

Judge David A. Ezra said the law violated due process rights and interfered with a woman's decision to have an abortion. He also re-ignited his own inter-court battle over the controversial law.

Inter-Court Battle

Ezra picked a fight with the U.S. Fifth Circuit Court of Appeals when he enjoined the law the first time. He went too far by ordering Catholic bishops -- who were not parties in the case but offered free burial services for the fetal remains -- to produce email and other documents within 24 hours.

Judge James Ho, for example, questioned whether the discovery was "to retaliate against people of faith for not only believing on the sanctity of life -- but also for wanting to do something about it." In an "extraordinary" statement, Ezra said he would ignore the Fifth Circuit opinions when the the appellate judges sent the case back to him.

Which he did, and enjoined the fetal burial law the second time. He issued a permanent injunction, saying the law enshrined "one view of the status of and respect that should be given to embryonic and fetal tissue remains."

State Attorney General Ken Paxton said he would appeal. His office has already paid more than $500,000 in expert fees to defend pro-life laws, according to reports.

Pro-Life Laws

The Houston Chronicle said the attorney general has paid 21 expert witnesses to testify in legal challenges to abortion laws since 2013. In five of six cases, the judges blocked the laws from going into effect pending trial.

Texas is also one of four states that have enacted laws to strip Planned Parenthood of government funding.

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