What should you do with a fetus that has died – whether through abortion, or through natural miscarriage? That question has elicited an emotional response from pro-life activists and others in Texas, as the courts decide whether to block a new law which would require that fetuses which have died (whether through abortion, miscarriage, or in the case of ectopic pregnancy) be given a proper burial. 

Senate Bill 8, known as the Fetal Remains Burial Law, would require that fetal remains be cremated or buried, and not dumped in a landfill or flushed down a drain. That's actually just half of the pro-life bill; the other component is a clause which would prosecute abortionists who use the dilation and evacuation method in the second trimester, when the developing fetus is capable of feeling pain. Dilation and evacuation is the most common method currently in use for abortions after the 15th week of pregnancy.

The bill to require health care facilities to properly dispose of fetal remains was actually passed by majority vote in the Texas Legislature in 2017, and was slated to go into effect Feb. 1; but abortion advocates sued the state, obtaining a temporary injunction which halted the bill's implementation. Attorneys for the pro-abortion Center for Reproductive Rights and Whole Women's Health argued that S.B. 8 is an “invasion of women's privacy.” They insisted that it would represent a financial hardship, especially for low-income women, whose inability to cover the additional expense of a funeral might make it impossible for them to choose abortion.

But state officials countered, asserting that the bill would result in no additional cost to patients, and only small costs for providers. And fetal remains from abortion or miscarriage would be provided a better resting place than a landfill. 


The Strained Logic of Pro-Abortion Activists

Pro-abortion advocates are worried that the bill, if implemented, would “grant dignity to the unborn.” They've called the legislation “cruel” and “medically unnecessary.” And the most counterintuitive testimony was an illogical complaint by Lucy Stein of Progress, Texas, who said that the bill did not align with her personal religious beliefs. The Austin Chronicle, a free alternative weekly newspaper, reported on her testimony: “As a Jewish woman,” she said, “I would not want my fetal tissue to be incinerated in a mass grave. That would violate my religious belief.” So for Stein, killing the child is fine, but burying it in a mass grave (which is not even what the Bishops had intended) would be wrong. 


Catholic Respect for Life – Including the Aborted Fetus

A 2008 article by Ron Hamel, Ph.D. on the website of the Catholic Health Association reports that the fourth edition of the U.S. Bishops' Ethical and Religious Directives for Catholic Health Care, the edition in use at that time, did not address the issue of disposal of fetal remains. The fifth edition, published in 2009, also fails to anticipate the issue. However, Dr. Hamel noted that the Canadian and Australian ethical and religious health care directives did include two relevant statements. The first said that

all embryos and fetuses, including those that are malformed, deserve the same respect owed to any human being.

And the second statement requires that hospitals should have a policy in place

...to ensure that all aborted embryos and fetuses, and the remains of miscarriages and stillbirths, are buried or cremated in a respectful manner and place.

The Congregation for the Doctrine of the Faith, in its 1987 instruction on respect for human life in its origin and on the dignity of procreation, Donum Vitae, spoke of the respect that is to be given to embryos and fetuses:

The corpses of human embryos and fetuses, whether they have been deliberately aborted or not, must be respected just as the remains of other human beings.

The Code of Canon Law addresses the appropriate manner of disposition of human remains:

The Church earnestly recommends that the pious custom of burying the bodies of the deceased be observed; nevertheless, the Church does not prohibit cremation unless it was chosen for reasons contrary to Church doctrine.


Texas Bishops Signal Respect for the Fetus

In the Texas courtroom, the Texas Conference of Catholic Bishops, agreeing that aborted fetuses should at least be given a dignified burial, stepped in to offer their assistance. According to the ABA Journal:

The Texas Conference of Catholic Bishops had testified in administrative proceedings before passage of the law that the conference believed fetal remains should be disposed of with respect. Before the law passed, the conference announced it would work with Catholic cemeteries and funeral homes to provide free burial services to fetal remains produced as a result of abortions. 

Two cemetery officials – James Shields of Our Lady of the Rosary Catholic Cemetery, and Morgan Cook of The Gabriels Funeral Chapel and Crematory – testified during the trial, promising to help abortion providers to meet S.B. 8's requirements. 


Unintended Consequences

But good intentions may have undesired consequences. Indeed, we are taught by Jesus himself to bury the dead; it is one of the seven Corporal Works of Mercy, which give us a model for how we should treat all others, as if they were Christ in disguise. There is a potential problem, though — Lynn Mills, a pro-life activist from the Detroit area, pointed out that it is never right to cooperate with evil. If the Church paid for the funerals or if, at the bishops' urging, Catholic cemeteries and funeral homes provided funding for burial costs, and if that made it possible for more young women to choose abortion, then the unintended consequence of Catholic generosity could be that more babies would die.

Testimony in the case wrapped up July 20. The final ruling is expected sometime in August.