Dishonoring the Dead: Moral and Constitutional Considerations on Fetal Disposition

Deirdre Cooper
and by Kody W. Cooper
February 20, 2018
Reproduced with Permission
Public Discourse

When Texas passed SB 8 in 2017, requiring the humane disposition of fetal remains, there ought to have been broad support across the political spectrum. Instead, politics as usual has colored the rhetoric of pro-abortion partisans. And, at the end of January 2018, a US District Court delivered a victory for pro-abortion forces in issuing a preliminary injunction of the law. Among other things, the opinion held that abortion providers had a "substantial likelihood of success" in demonstrating their constitutional claim that Texas's law violates the Due Process Clause.

But Texas's humane disposition provisions are not only constitutional (even under the legal regime of Casey ), but also a morally laudable response to gruesome revelations about how the abortion industry disposes of fetal remains.

Resisting Civilized Barbarism

In 2015, the Center for Medical Progress (CMP) released undercover videos that shocked many Americans. The videos showed Planned Parenthood higher-ups discussing the purchase and sale of fetal body parts.

While it is true that the videos were edited down to a shorter duration, they were not the misleading hit jobs some media outlets portrayed them to be. The full transcripts were made available, and they confirm the depravity of abortion industry practices. CMP's videos led to an investigation, a multimillion dollar settlement, and the shutdown of two bioscience companies in California that were unlawfully engaged in for-profit trafficking of fetal parts. Planned Parenthood is currently under federal investigation .

In trying to make sense of what sort of people we are at risk of becoming, one would not be remiss to recall Chesterton's description of the Carthaginian cult of Moloch. Carthage was a highly polished and refined civilization that sought the gods' blessing with a regular holocaust of infants. In relating the ancient Carthaginians to his English audience, Chesterton asked his readers to imagine bewhiskered and chimney-pot-hatted Manchester merchants congregating at church Sunday mornings for baby sacrifice. Similarly, we are being forced to imagine a civilization where it is normal for well-coiffed and neatly dressed medical doctors to casually pick at organic salads and sip fine wines while discussing the finer details of how to extract intact livers, hearts, and brains of unborn children - all in the name of the gods of Equality, Progress, and Mammon.

Many Americans are horrified at the prospect of such civilized barbarism. And that is why, acting through their state representatives, Texans - and the people of several other states - have demanded that steps be taken to prevent buying and selling fetal remains for research and to dispose of fetal remains humanely. The Texas law provides that fetal remains at healthcare facilities be disposed of by interment, cremation, incineration followed by interment, or steam disinfection followed by interment.

To be clear, these disposition methods were already lawful in Texas. The law simply removed the options of grinding fetal remains and flushing them in the sewer system or discarding them in landfills.

Responding to Criticisms of the Law

The law has garnered a range of criticisms. One concern is that the fetal disposition requirements will raise the costs of abortions, thus constituting an undue burden.

It cannot pass unnoticed that this objection is particularly rich coming from the industry that has profited off of selling fetal body parts. Now it shamelessly complains that dignified disposal of fetal bodies will be too costly. Suppose for the sake of argument that the regulation did raise costs. If the abortion industry is genuinely concerned with the access women have to abortion, then why not pass the buck to its administrators and doctors instead of women? Why is this question never raised and never answered? Is it because the abortion industry workers care more about fine wine than about indigent women?

In all likelihood, the extra cost would be negligible. At a trial on the regulations, Texas Department of State Health Services and the abortion facilities' expert estimated an effect of less than $5 increased cost per abortion.

Moreover, the cost objection overlooks the lengths to which Texas and the pro-life community have gone to ensure that the new requirements are cost-neutral. The law creates a registry for funeral homes and cemeteries willing to provide free common burial and low-cost private burial, as well as private nonprofits that would provide financial assistance. The Texas Catholic Conference of Bishops is one group that has volunteered to handle disposition of fetal remains for free. Moreover, the state created a grant program using private donations to further its interests in ethical disposal of fetal remains.

The District Court decision accorded great weight to cost considerations, holding that such speculations outweighed Texas's state interest in expressing its "profound respect for the life of the unborn." The problem with this reasoning is that this state interest was recognized as valid in both the Casey and Carhart cases. Moreover, both cases explicitly asserted that when state policies have an incidental effect of making abortion more expensive, the increase in cost does not render the policies unconstitutional.

It is true that Whole Women's Health v. Hellerstedt (2016) considered costs of compliance as a factor when it struck down the Texas law requiring abortion facilities to meet the standards of ambulatory surgical centers. But the Court spoke of "significant" costs and referenced estimates of several million dollars to bring clinics to code. There has been no demonstration that this law imposes significant costs on abortion providers.

Blessed are Those Who Mourn?

Never mind any of that, the District Court tells us. According to Judge David Alan Ezra, the state's interest in the life of the unborn child does not encompass an interest in his or her dead body. This is a truly radical claim. It completely ignores the inherent interest - and indeed, duty - of persons and the representatives they elect in properly disposing of and mourning the dead.

Mourning the dead is a reflection of the love one has for the living. It is a necessary accompaniment to any profound interest in life, just as grief is necessarily proportioned to love. From the gods' and the Trojans' concern for the body of Hector, to Christ's second beatitude, to Burke's conception of society as a partnership of generations - the best of Western literature, religion, and political thought has recognized this reality.

A couple of personal examples ought to suffice to prove that this remains a collective interest even for us late moderns. Once upon a time, one of the authors stood in line overnight, joining 200,000 other mourners, to pass Ronald Reagan's casket in the capitol rotunda. Meanwhile, about 4,000 miles away, one of us was visiting the Omaha and Utah beaches and the Normandy American Cemetery (which receives a million visitors per year), sixty years after D-Day. Our activities in early June 2004 were acts of mourning, facilitated by a government expressing its interest in proper interment of the dead.

Now, one could object that it is uncontroversial to mourn dead presidents in state and soldiers who died on the battlefield, at least insofar as all agree they are persons deserving of such respect. Thus, Judge Ezra argues that Texas's program would prescribe a controversial orthodoxy regarding the personhood of the unborn and might make women feel ashamed of getting an abortion. But this reasoning is more slippery than a pocketful of pudding.

Why should anyone who denies the personhood of the fetus care what the pro-lifers want to do with sanitized or cremated biomedical waste? After all, if abortion removes mere "tissue" - a clump of cells more akin to a tumor than a person - then what difference does it make if the benighted pro-lifers want to waste their time eulogizing it? If that were the case, then the feared "shame" would be rationally groundless. The hand-wringing about burial - including the prophecy that abortive mothers would object to religious burials - seems to betray the revenge of conscience. The deniers seem to concede that the truth about human life is something they can't not know. In other words, it is absurd to maintain both that the aborted entity is morally worthless and that a religious burial is sufficiently meaningful to merit objection.

Judge Ezra is right that Casey enacts a practical legal relativism about human life - but he is wrong that Texas prescribes a pro-life orthodoxy. A pregnant woman has a legal right to choose to believe the entity inside her is or is not a person. If she is a denier, that is her choice and therefore her truth. But, having chosen to believe it is not a person, and contracted to terminate the entity, her "truth" has carried the day. To annul the collective right of citizens, who take the entity to be a person endowed with dignity, to have any say in how the dead are to be disposed of is to prescribe the deniers' view as the orthodox one.

These arguments falling short, Judge Ezra dredges up the tired bad-faith argument, that Texans are just trying to sneakily proscribe abortion behind smoke and mirrors. But the democratic right of Texans to vote on the legality of abortion in their state was taken away long ago. It isn't about that. It is about whether states will be coerced to affirm abortion as a positive good rather than merely tolerating and mourning it as a tragic necessity.


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