Ohio sued over law requiring burial or cremation of aborted fetal remains

Columbus, Ohio — Abortion providers in Ohio sued Tuesday to block a state law requiring that fetal remains from surgical abortions be cremated or buried, arguing a lack of rules makes complying "impossible."

Clinics and their lawyers at ACLU of Ohio filed suit against the Ohio Department of Health and others in Hamilton County Common Pleas Court. They asked the court to block the law as an unconstitutional hurdle to women's legal right to an abortion.

"We file this complaint to ensure that we are not vulnerable to severe sanctions, fines and penalties, including potential license revocation, during this interim period," the plaintiffs said in a statement. "Given the history of aggressive enforcement by the State against abortion providers in the past, we have no choice but to take this matter to court."

The providers call the law "frivolous and medically unnecessary."

At the time of its passage, abortion foes called the new law a "vital piece of pro-life legislation" that assured human life was treated with dignity.

Abortion rights advocates said it was another in a long string of recent Ohio laws aimed at making legal abortions harder for women to get.

Those have included bans on telemedicine abortions; on dilation and evacuation, or D&E, abortions; on abortions in cases in which a fetal Down syndrome diagnosis is a factor; and on all abortions after detection of the first fetal heartbeat, which can occur as early as six weeks into pregnancy before many women know they are pregnant. Courts have blocked the latter three laws as constitutional challenges proceed.

In Tuesday's lawsuit, the clinics said unless the court grants their request to block the fetal tissue law, they'll be forced to begin turning patients away beginning April 6, when the law is set to take effect.

The measure replaces an earlier state law that required aborted fetuses to be disposed of "in a humane manner," but did not define "humane." Remains from what are known as surgical, or procedural, abortions fell under existing rules for handling infectious waste, meaning they could be disposed of with material from other medical procedures.

The suit calls the law "a sea-change in how (clinics) manage tissue."

The clinics - including Planned Parenthood, Preterm-Cleveland, Women's Med Group and Northeast Ohio Women's Center - told the court that rule-making cannot now legally happen in time for the law's effective date. The suit notes that it's unclear whether elements of existing regulations on the disposal of human bodies might apply under the new law, such as whether burial of fetal remains will require a death certificate and burial permit.

The anti-abortion group that championed the new fetal remains protocol defended the law.

"Requiring the broken bodies of abortion victims to be humanely buried is simply common decency," Ohio Right to Life President Mike Gonidakis said in a statement. "The abortion industry's desire to deny the innocent unborn even the right to a proper burial reveals where their allegiances lie: not with basic decency, but with their bottom line."

A form required under the new law has not yet been developed to record that each woman has been notified and whether she's chosen burial or cremation.

Yet, the lawsuit charges, Republican Attorney General Dave Yost has refused to give clinics assurances they will not face misdemeanor penalties until that happens. His refusal is what prompted the litigation, the lawsuit says.

Messages seeking comment were left with Yost's spokesperson and the Ohio Department of Health.

Republican Gov. Ohio Mike DeWine signed the fetal tissue measure into law in December.

As state attorney general, he investigated allegations regarding Planned Parenthood's treatment of fetal remains in 2015. His report found no evidence of the illegal disposal that was alleged, but it criticized the organization for disposing of fetal remains in landfills. Planned Parenthood called the finding "inflammatory."