Bills
| 3.23.22

Should Abortion Providers Have to Respectfully Cremate or Inter Fetal Remains After an Abortion? (S. 2590)

Do you support or oppose this bill?

What is S. 2590?

(Updated November 16, 2020)

This bill — the Dignity for Aborted Children Act — would require abortion providers to dispose of the remains of unborn children in the same way that they would any other human being’s remains. It would also make the failure to do so punishable by a fine of up to $50,000 and/or up to five years’ imprisonment. 

Abortion providers would be required to offer patients the following options for disposing of the fetal tissue from the abortion:

  • The patient may take possession of the human fetal issue themselves and transfer the tissue to an entity providing interment or cremation services; or
  • The patient may elect to release the human fetal tissue to the abortion provider, who would then be required to dispose of the human fetal tissue through intermet or cremation no more than seven days after the procedure.

On an annual basis, each abortion provider would be required to submit annual reports to the Secretary of Health and Human Services (HHS Secretary) detailing: 

  • The number of abortions performed by each abortion provider;
  • The gestational age at the time of each abortion procedure; and
  • For abortions carried out using an abortion method other than chemical abortion, the aggregate number of fetal remains transferred for interment or cremation and the number released to patients.

Using this information, the HHS Secretary would submit an annual report to Congress detailing the number of abortions by state, procedure type, and method of disposal of human fetal tissue.

A patient who receives an abortion that violates this bill’s provisions is performed wouldn’t be subject to prosecution under this bill.

Argument in favor

As the case of Dr. Klofper — who had hoarded over 2,200 medically preserved aborted fetuses in his home prior to his death — illustrates, human fetal tissue isn’t always treated with dignity after an abortion procedure. This bill would ensure that human fetal tissue is given the respect the unborn life deserves. It doesn’t impinge on Roe v. Wade rights, nor does it change abortion’s legality across the country.

Argument opposed

This bill is an attempt to raise barriers to abortion by creating burdensome requirements for abortionists and patients. It could also raise abortion costs by multiple thousands of dollars per procedure, making abortions inaccessible to many women. While the case of Dr. Klopfer was shocking, it was an aberration — and it shouldn't be politicized as a weapon to restrict abortion across the country.

Impact

Women who undergo abortion procedures; fetuses aborted through abortion procedures; abortionists; and handling of human fetal tissue after an abortion procedure.

Cost of S. 2590

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Mike Braun (R-IN) — who won his Senate seat in 2018 by pledging to oppose abortion rights even more fiercely than incumbent Sen. Joe Donnelly (D-IN) — introduced this in response to the September 12, 2019, discovery of 2,246 medically preserved aborted fetal remains in the home of Indiana abortion doctor Dr. Ulrich George Klopfer after his death on September 3, 2019. This bill would require abortion providers to create and enforce guidelines for the dignified handling of aborted fetal remains: 

"The discovery of thousands of fetal remains in an Indiana abortionist's home horrified every American who respects the sanctity of life, and highlighted a disturbing trend that Indiana has taken the lead in rectifying. All human remains, regardless of stage of life, deserve to be treated with dignity and respect, and I'm proud to introduce the Dignity for Aborted Children Act to ensure that grotesque collections like Dr. Klopfer's can't be allowed to happen ever again."

In an email to the National Review, Sen. Braun said that while Klopfer’s case is an extreme example, fetal remains often aren’t treated with respect (hence the need for this bill): 

“The horrific discovery in Dr. Klopfer’s home was a wake-up call to a problem that’s sadly not an isolated incident: the remains of aborted children being treated with irreverence and disrespect. Following that grisly discovery, the questions on everyone’s mind were, ‘How was this allowed to happen, and how do we make sure it never happens again?’”

Original cosponsor Sen. Ted Cruz (R-TX) adds: 

“Harvesting the remains of murdered unborn babies is despicable. Every unborn child is a precious gift from God and we must respect the sanctity of life. I am proud to co-sponsor this bill to establish and enforce guidelines for handling aborted fetal remains in a dignified way.”

Susan B. Anthony List (SBA List) is among a number of anti-abortion groups that supports this bill. Its president, Marjoe Dannenfelser, says: 

“The discovery of the remains of over 2,200 aborted children in late abortionist Ulrich Klopfer’s home was a sickening reminder of the abortion industry’s radical commitment to abortion above health, safety and basic human dignity. Mothers whose little ones were aborted by Klopfer were retraumatized by the news, wondering whether their babies were among those stockpiled on his property. While the Supreme Court has upheld Indiana’s law requiring respectful treatment of the remains of aborted babies, Illinois and many other states have no such law. We are grateful to Senator Braun for introducing the Dignity for Aborted Children Act and hope the Senate will pass it swiftly.”

Abortion proponents tend to oppose fetal remains laws, contending that they inappropriately confer personhood on fetuses in the context of abortion, even though judicial decisions beginning with Roe v. Wade have consistently denied personhood to the unborn in such cases. They also say that fetal cremation and burial (both of which are more expensive than incineration, the most common current practice for disposal of human tissue in hospitals and outpatient settings) raises the cost of abortions and such laws open the door to more regulatory pressure for both abortion providers and the vendors they contract with. 

In 2004, the Unborn Victims of Violence Act — also known as Laci and Conner’s Law, after Laci Peterson and fetus Conner Peterson, who were killed by Laci’s husband and Conner’s father, Scott Person — created a federal law granting personhood to an embryo or fetus in utero if any of over 60 listed federal violent crimes are committed against it. However, this law explicitly does not confer personhood to the fetus or embryo in the case of abortion. Similar laws exist at the state level in at least 38 jurisdictions. Regardless of the jurisdiction level, these fetal homicide laws are used to enhance penalties against people who commit crimes against pregnant women and the unborn.

Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, an Indiana abortion clinic that has fought state lawmakers’ abortion restrictions, says fetal burial laws target “providers as somehow needing extra and additional rules or regulations that do not apply to others in similar situations, such as miscarriage, stillbirth, other pregnancy-related situations” and “amplif[y] the notion that abortion is outside of normal, mainstream medical practices.” She adds that such laws, while couched as concerns for the fetus, are just another anti-choice tactic: 

“To require cremation or burial will add costs, but it also adds another potential arena for regulatory interference, and that to me is the secondary behind-the-scenes objective of the anti-abortion folks with this trend in legislation. They couch it in concern for the embryo, but in essence it is actually another tactical barrier and backdoor way to shutter access and potentially close clinics, without overturning Roe.”

This legislation has 17 bipartisan Senate cosponsors and is endorsed by Heritage Action and a number of anti-abortion groups, including the Susan B. Anthony List, March for Life, The Family Research Council, National Right to Life, and Concerned Women for America.


Of Note: Sen. Braun’s home state of Indiana is one of a few states that already regulates the disposal of fetal remains after an abortion procedure. Indiana’s law, which was passed in 2016, was signed by then-Governor Mike Pence. It recently withstood a Supreme Court challenge earlier this year.

In 7-2 ruling in , the Court reversed a 2017 decision blocking Indiana’s fetal remains burial law. Justice Clarence Thomas wrote in his concurring opinion that nothing in the Constitution “prevents a state from requiring abortion facilities to provide for the respectful treatment of human remains” and that the state has a “legitimate interest" in the disposal of fetal remains. On the other hand, one of two dissenters, Justice Ruth Bader Ginsberg, wrote in her dissenting opinion that “the case implicates the right of a woman to have an abortion before viability and to obtain it without undue interference from the state.”

Additionally, while the Supreme Court didn’t weigh in on the merits either way, it also let stand lower court rulings that invalidated a broader measure that would prevent a woman from having a selective abortion (an abortion based on a fetus’ sex, race, or genetic disorder). It’s currently waiting on a second circuit court ruling on this issue before it takes it up.

Fetal burial laws in other states haven’t fared as well as Indiana’s. A federal judge blocked Texas’ proposed fetal burial rule in 2017 on the basis that the rule would constitute an “undue burden” on access to abortion care. After the Texas legislature then passed a law with similar restrictions, it was again blocked by a federal judge. The judge in that case, U.S. District Judge Sam Sparks, wrote, “It seems unlikely [the] professed purpose is a valid state interest and not a pretext for restricting abortion access. By comparison, Plaintiffs face likely constitutional violations, which could severely limit abortion access in Texas.”

One estimate of the Texas proposals by the Funeral Consumers Alliance of Texas found that the requirement to bury or cremate fetal remains could have raised abortion care costs by $2,000.

Arkansas and Louisiana have also seen fetal burial bills blocked by federal courts.

Currently, data collection on abortions is voluntary. This causes the CDC to rely on outdated data with significant gaps (California, Maryland, and New Hampshire, which combine to represent 15% of the U.S. population don’t report their abortion data). The CDC also notes that the level of data reported by state varies considerably from year to year and by reporting area, which further compromises data integrity. 

Even with these challenges, CDC abortion data and the agency’s Abortion Surveillance report are used for a number of important public health purposes, including to:

  • Identify characteristics of women who are at high risk of unintended pregnancy;
  • Evaluate teen pregnancy and unwanted pregnancy prevention programs’ effectiveness;
  • Calculate pregnancy rates, on the basis of the number of pregnancies ending in abortion, in conjunction with birth data and pregnancy loss estimates; and
  • Monitor changes in clinical practice patterns related to abortion (i.e., changes in the types of procedures used, and weeks of gestation at the time of abortion) and calculate the mortality rate of specific abortion procedures.

Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / SabdiZ)