Whole Woman's Health v. Smith (338 F. Supp. 3d 606, 2018)

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, 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 certain 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. 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. 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. 14 Tex. Reg. 1457, 1457-62 (adopted Mar. 14, 1989) (Tex. Dep't of Health, Definition, Treatment, and Disposition of Special Waste from Health Care Related Facilities), amended by Act of June 6, 2017, 85th Leg., R.S., ch. 441, 2017 Tex. Sess. Law Serv. 1165 (former 25 TEX. ADMIN. CODE §§ 1.132 - 1.137 ). Under the 1989 rules, Texas law treated embryonic and fetal tissue as pathological waste. Id. Texas healthcare facilities could use any of the following seven methods to dispose of human tissue, regardless of whether the tissue resulted from "surgery, labor and delivery, autopsy, embalming, or a biopsy" or a "spontaneous or induced human abortion[:]"

(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.

Id. After adoption of the 1989 rules, Texas's medical waste disposal scheme remained largely unchanged for over twenty-five years.

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. 41 Tex. Reg. 9709, 9709-9741 (Dec. 9, 2016). The revisions created a new term, "fetal tissue," defined as "[a] fetus, body parts, organs or other tissue from a pregnancy" and not including "the umbilical cord, placenta, gestational sac, blood or body fluids." Id. The revisions limited disposal of fetal tissue to three methods regardless of gestational age: interment, incineration followed by interment, or steam disinfection followed by interment. Id. Although the modified rules did not, on their face, prohibit the disposal of ashes from cremation of "fetal tissue" in a sanitary landfill, DSHS took the position that the modified rules prohibited placement of cremated fetal tissue in a landfill. See Dkt. # 49 at 12.

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. 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 of 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, 2017 Tex. Sess. Law Serv. 1165 (West). SB 8 contained numerous restrictions on pregnancy-related medical care, including a ban on the most commonly performed second-trimester abortion, which a court in this district previously ruled facially unconstitutional. Whole Woman's Health v. Paxton (Whole Woman's Health II) , 280 F.Supp.3d 938 (W.D. Tex. 2017), appeal docketed , No. 17-51060 (5th Cir. Dec. 1, 2017).

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.

Id. § 697.002(3). Chapter 697 removes this new category of waste from the definition of pathological waste and creates different disposal requirements for it. Id. § 697.003. Specifically, under § 697.004, a Texas healthcare facility "that provides health or medical care to a pregnant woman shall dispose of embryonic and fetal tissue remains that are passed or delivered at the facility" by:

(1) interment;

(2) cremation;

(3) incineration followed by interment; or

(4) steam disinfection followed by interment.

Id. § 697.004(a). Any ashes resulting from cremation of embryonic and fetal tissue remains "(1) may be interred or scattered in any manner as authorized by law for human remains; and (2) may not be placed in a landfill." Id. § 697.004(b).

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." Id. § 697.005. Chapter 697 further mandates that DSHS establish a grant program "us[ing] private donations to provide financial assistance for the costs associated with disposing of embryonic and fetal tissue remains." Id. § 697.006.

Although the entirety of SB 8 took effect September 1, 2017, SB 8 established a variety of effective dates for Chapter 697.

SB 8 §§ 18-19, 22. SB 8 mandated that HHSC "adopt any rules necessary to implement" Chapter 697 by December 1, 2017. Id. § 18(a). It also required DSHS to establish the grant program by October 1, 2017, and award grants under that program by February 1, 2018. Id. § 18(b). Finally, SB 8 decreed Chapter 697 would govern the disposition of embryonic and fetal tissue remains starting February 1, 2018. Id. § 19(d).

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. 43 Tex. Reg. 465, 465-73 (codified at 25 TEX. ADMIN. CODE §§ 138.1 - .7 ). In general, the rules restate provisions of Chapter 697, but they also provide detail on the scope of Chapter 697 and additional restrictions. See id.

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. Id. § 138.3. The rules also limit the types of containers that may be used to hold embryonic and fetal tissue remains for cremation. Id. § 138.5(b).

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." Id. § 138.5. And the rules allow three types of people or entities to store, handle, or transport embryonic and fetal tissue remains: a person or entity authorized to handle human remains by the Texas Funeral Service Commission, a person or entity authorized by the Texas Commission on Environmental Quality (TCEQ) to handle special waste from healthcare facilities, and any healthcare facility generating embryonic and fetal tissue remains. Id. § 138.6.

Finally, on June 27, 2018, the TCEQ adopted new rules permitting licensed crematories to dispose of embryonic and fetal tissue remains. 43 Tex. Reg. 4757, 4757-62 (July 13, 2018). The TCEQ's new rules became effective July 19, 2018, in the middle of this case's trial. Id. at 4762. Before the TCEQ's new rules became effective, crematories were not legally permitted to cremate embryonic and fetal tissue remains. See Tr. Vol. 4, 167:9-168:1.

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.

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. Dkt. # 150.

On 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. 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. Id.

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'

right 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. 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 deprive 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 , 505 U.S. 833, 846, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion); see also Jackson Women's Health Org. v. Currier , 760 F.3d 448, 453 (5th Cir. 2014) (citing Roe v. Wade , 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ).

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.

Id. ; see also Gonzales v. Carhart , 550 U.S. 124, 145, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007).

From these principles, Casey "struck a balance," articulating the undue burden standard. Gonzales , 550 U.S. at 146, 127 S.Ct. 1610. Before viability, a state "may not prohibit any woman from making the ultimate decision to terminate her pregnancy." Id. (quoting Casey , 505 U.S. at 879, 112 S.Ct. 2791 ). A state "also may not impose upon this right an undue burden, which exists if a regulation's 'purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.' " Id. (quoting Casey , 505 U.S. at 878, 112 S.Ct. 2791 ). On the other hand, "[r]egulations which do no more than create a structural mechanism by which the State ... may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose." Id. (quoting Casey , 505 U.S. at 877, 112 S.Ct. 2791 ). "A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Casey , 505 U.S. at 877, 112 S.Ct. 2791.

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 --- U.S. ----, 136 S.Ct. 2292, 2309-10, 195 L.Ed.2d 665 (2016). "[A] statute which, while furthering a valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends." Id. at 2309 (quoting Casey , 505 U.S. at 877, 112 S.Ct. 2791 ). Applying the undue burden standard "requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer." Id. at 2309 (citing Casey , 505 U.S. at 887-98, 112 S.Ct. 2791 ). In essence, a court evaluates the evidence in the record and then "weigh[s] the asserted benefits against the burdens." Id. at 2310. Where laws do not confer "benefits sufficient to justify the burdens upon abortion access that each imposes," then "[e]ach places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution." Id. at 2300 (internal citation omitted).

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 , 748 F.3d 583, 589 (5th Cir. 2014) (citing Kowalski v. Tesmer , 543 U.S. 125, 129-30, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) ).

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." See id.

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 is 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 , 428 U.S. 106, 117, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (plurality opinion) ("Aside from the woman herself, therefore, the physician is uniquely qualified to litigate the constitutionality of the State's interference with, or discrimination against, [the abortion] decision.").

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 , 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ). A court balances two factors when evaluating ripeness: "(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration." Texas v. United States , 497 F.3d 491, 498 (5th Cir. 2007). Defendant only argues that any obstacles to abortion access are conjectural and hypothetical as Plaintiffs have not taken concrete steps to comply with the challenged laws. Therefore, Defendant argues, Plaintiffs' undue burden claims are not fit for judicial decision.

"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." Id. (internal quotation marks and alterations omitted). In assessing the fitness for review, a court also considers "whether the resolution of the issues will foster effective administration of the statute." Id. at 499 (citation omitted). Defendant does not dispute that the questions presented by this case are purely legal and that the challenged laws constitute final agency action. Instead, Defendant contends implementation of the challenged laws would better illuminate the ability of Texas healthcare providers to comply.

But the inevitability of the application of the challenged laws to Plaintiffs supports deciding constitutionality before the laws are implemented. See Pearson v. Holder , 624 F.3d 682, 684 (5th Cir. 2010) ("Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect." (quotation omitted) ). And the hardship of withholding court consideration outweighs any marginal benefit gained by delaying review. To require healthcare providers to attempt to comply with the challenged laws without knowing whether the challenged laws are valid would require healthcare providers to suffer considerable uncertainty and expense. See Thomas v. Union Carbide Agr. Prod. Co. , 473 U.S. 568, 581-82, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). If Plaintiffs cannot object to the challenged laws via this lawsuit, Plaintiffs must choose one of two undesirable options: attempt to comply with allegedly unconstitutional disposal rules and incur costs and logistical difficulties or refuse to comply and risk severe civil penalties. See Texas , 497 F.3d at 499 (citing Abbott Labs. , 387 U.S. at 152, 87 S.Ct. 1507 ). Consequently, the Court finds Plaintiffs' undue burden claims are ripe for review.

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 , 136 S.Ct. at 2309 (citing Casey , 505 U.S. at 877, 112 S.Ct. 2791 ). Accordingly, the first step in the undue burden analysis requires the Court to evaluate whether the challenged laws further a legitimate state interest.

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. , 462 U.S. 416, 451, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), that decision is not definitive here, at least in part because it was subsequently overruled. See Casey , 505 U.S. 833, 112 S.Ct. 2791 ("We must overrule those parts of ... Akron I which, in our view, are inconsistent with Roe's statement that the State has a legitimate interest in promoting the life or potential life of the unborn...."). In Akron I , the Supreme Court reviewed a city ordinance requiring physicians performing abortions to "insure that the remains of the unborn child are disposed of in a humane and sanitary manner." Id. Highlighting the concern that the language might be construed to "mandate some sort of 'decent burial' of an embryo at the earliest stages of formation," the Supreme Court affirmed the lower court's ruling that the word "humane" was impermissibly vague. Id.

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. Id. at 452 n.45, 103 S.Ct. 2481. Immediately thereafter, the Supreme Court noted that the city could "enact more carefully drawn regulations that further its legitimate interest in proper disposal of fetal remains." Id. (emphasis added).

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 id. On the other hand, the same language can be read to condone any state effort to define "the proper" disposal method of fetal remains. See id. Thus, not only was Akron I overruled, it does not offer a clear indication on whether the State's interest in this case is legitimate.

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 , 794 F.2d 994, 997-98 (5th Cir. 1986).

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 , 597 F.Supp. 636, 670 (E.D. La. 1984). The district court further concluded "the disposal statute unreasonably places 'obstacles in the path of the doctor upon whom [the woman is] entitled to rely for advice in connection with her decision.' " Id. at 671 (quoting Akron I , 462 U.S. at 445, 103 S.Ct. 2481, overruled by Casey , 505 U.S. at 881-84, 112 S.Ct. 2791 ).

On appeal, the Fifth Circuit affirmed the district court's conclusion the statute was unconstitutional, albeit on narrower grounds. Id. Relying on Akron I's conclusion that a statute requiring a physician to personally disclose important information to women before an abortion was unconstitutional-a conclusion later overruled in Casey -the Fifth Circuit held that mandating the attending physician inform the patient about her options for fetal tissue disposition was unconstitutional. Margaret S. v. Edwards , 794 F.2d at 998. In reaching its decision, the Fifth Circuit avoided considering whether the State's interest was valid. See id. at 998 (noting only that "the State's strong interest in ensuring that physicians obtain the patient's informed consent before performing abortions" was not present). Though factually comparable to the case here, Margaret S. does not aid the Court in its current analysis because the Fifth Circuit did not address whether Louisiana had a legitimate interest in obtaining women's fetal tissue disposition preferences. See id.

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 , 888 F.3d 300 (7th Cir. 2018) (2-1 decision). Indiana asserted an interest in "the humane and dignified disposal of human remains." Id. at 308. As the Seventh Circuit noted, the statute's practical effect required healthcare providers to bury, cremate, or entomb aborted fetuses. Id. at 304. However, a key difference exists between this case and Planned Parenthood of Indiana : in the Seventh Circuit's case, the parties agreed no fundamental right was at stake and thus the court was obligated to apply rational basis review. Id. at 307-08.

Applying rational basis review, the Seventh Circuit found Indiana's interest in enacting the fetal tissue disposition statute was not legitimate. Id. at 307-10. The Seventh Circuit reasoned that advancing "the interest of humane and dignified disposal of aborted fetuses requires recognizing that the fetus is legally equivalent to a human." Id. at 309. Relying on the principle that the law does not recognize an aborted fetus as a person, the Seventh Circuit concluded "the State's interest in requiring abortion providers to dispose of aborted fetuses in the same manner as human remains [was] not legitimate." Id. at 308-09.

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. , 910 F.2d 479, 481 (8th Cir. 1990). The Minnesota law required fetal remains resulting from abortions and miscarriages to be disposed of by "cremation, interment by burial, or in manner directed by the commissioner of health." Id. at 481 n.2. The plaintiff in the Eighth Circuit case "concede[d] the state has a legitimate interest in protecting public sensibilities." Id. at 488. Nevertheless, the Eighth Circuit stated in dicta that "the State has a legitimate interest in regulating the disposal of fetal remains." Id. at 481-82 (citing Akron I , 462 U.S. at 451-52 nn. 44-45, 103 S.Ct. 2481 ). And to the extent that statute conveyed "the state's conclusion that fetal remains are the equivalent of human remains," the Eighth Circuit did not find such a purpose to be invalid as "the state may make a value judgment favoring childbirth over abortion." Id. at 487.

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 , 550 U.S. at 157, 127 S.Ct. 1610 ("The government may use its voice and its regulatory authority to show its profound respect for the life within the woman."); id. at 158, 127 S.Ct. 1610 ("[T]he State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child ...."); Casey , 505 U.S. at 876, 112 S.Ct. 2791 (recognizing there is a substantial state interest in potential life throughout the pregnancy). By contrast, the challenged laws here express respect for unborn life after the pregnancy has ended, when there is no longer a potential life to protect.

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. ----, 138 S.Ct. 1719, 1731, 201 L.Ed.2d 35 (2018) ("Just as 'no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,' it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive." (quoting West Virginia Bd. of Ed. v. Barnette , 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (internal citation omitted) ) ); Lawrence v. Texas , 539 U.S. 558, 577, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (finding a Texas statute furthered no legitimate interest in prohibiting a practice the governing majority traditionally viewed as immoral); Casey , 505 U.S. at 850, 112 S.Ct. 2791 ("Our obligation is to define the liberty of all, not to mandate our own moral code."); see also Reliable Consultants, Inc. v. Earle , 517 F.3d 738, 745 (5th Cir. 2008) (holding interests in "public morality" could not sustain a statute prohibiting sales of devices used for sexual stimulation). Under this purview, as Plaintiffs argue, the State's interest in expressing respect for the unborn by providing for the dignified disposition of embryonic and fetal tissue remains could be interpreted as impermissible morality-based legislation.

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 , 505 U.S. at 851, 112 S.Ct. 2791 ("At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the State."); id. at 852, 112 S.Ct. 2791 (stating that the consequences of abortion "depend[ ] on one's beliefs, for the life or potential life that is aborted"). Speaking directly to this protection, the Supreme Court explained that a woman's motherhood decisions "must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society." Id. The decision to carry a child to full term "is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role ...." Id. From these principles derives the idea that the State cannot-without additional rationale-enshrine its morality-based beliefs concerning the significance of embryonic and fetal tissue remains and when life begins.

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 , 550 U.S. at 157-58, 127 S.Ct. 1610. Within the abortion context, the Supreme Court indicated the State "has an interest in protecting the integrity and ethics of the medical profession" and "in regulating the medical profession in order to promote respect for life, including the life of the unborn." Id. (quoting Washington v. Glucksberg , 521 U.S. 702, 731, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ). The State is also "permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest." Casey , 505 U.S. at 886, 112 S.Ct. 2791. Together, these principles endorse Defendant's argument that the State has a valid interest in regulating the disposal of fetal remains to promote respect for life, even when there is no health interest.

In addition, under the umbrella of its police power, the State may generally regulate public morality. See Berman v. Parker , 348 U.S. 26, 32, 75 S.Ct. 98, 99 L.Ed. 27 (1954) ("Public safety, public health, morality, peace and quiet, law and order-these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs."); Davidson v. City of Clinton, Miss. , 826 F.2d 1430, 1433 (5th Cir. 1987) ("The police power confers upon the states and local governmental units broad regulatory authority over public health, welfare, and morals."); see also Tsoras v. Manchin , 431 F. App'x 251, 253 (4th Cir. 2011) ("The police power embraces regulations ... in the interest of the public health, morals, or safety." (quoting Chicago & Alton R.R. Co. v. Tranbarger , 238 U.S. 67, 77, 35 S.Ct. 678, 59 L.Ed. 1204 (1915) ) ).

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 , 136 S.Ct. at 2310 (inferring that the legislature sought to further a constitutionally acceptable objective). As summarized above, there is some case law indicating the State advances a legitimate interest in regulating healthcare providers to promote respect for potential life, even when that potential no longer exists. And the expansive police power of the State also counsels in favor of finding the State's interest valid. Therefore, as legislatures are given broad deference in their embodiment of the democratic ideals upon which this nation was founded, this Court assumes the challenged laws further a legitimate state interest. See Schuette v. BAMN , 572 U.S. 291, 312, 134 S.Ct. 1623, 188 L.Ed.2d 613 (2014) (plurality opinion) ("Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.").

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 of 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. 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.

Finally, the challenged laws likely have de minimis persuasive effect, if any at all. 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. 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, the only vendor known 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 14 Tex. Reg. 1457, 1457-62. Separate regulatory schemes governed the disposition of pathological waste and human remains. Compare id., with TEX. HEALTH & SAFETY CODE ch. 711 (governing cemeteries, including right to control interment, records of interment, and removal of remains), and TEX. HEALTH & SAFETY CODE ch. 716 (governing crematories, including authorization to cremate, records of cremation, simultaneous cremation, and disposition of cremated remains), and TEX. OCC. CODE ch. 651 (governing funeral directors and embalmers, including the transportation of remains and pricing of services).

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 business 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. 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 mu