En Banc Fifth Circuit Hears Debate Over Texas Ban on Common Abortion Method

An attorney for the Lone Star State argued the dilation and evacuation method of abortion is inhumane and Texas lawmakers were right to outlaw it.

Activists dressed as characters from “The Handmaid’s Tale” protest against an abortion bill at the Texas Capitol in Austin in May 2017. (AP Photo/Eric Gay)

NEW ORLEANS (CN) — Texas’ ban on the most common abortion procedure during the second trimester came before the full 14-judge panel of the Fifth Circuit on Thursday, with arguments invoking gruesome images of fetal dismemberment.

During an en banc rehearing held virtually, attorneys sparred over whether banning that procedure unduly burdens women seeking abortion.

The case at issue, Whole Women’s Health v. Paxton, involves what has come to be commonly known as the D&E procedure, short for dilation and evacuation, and Senate Bill 8, the Texas legislation that outlaws the method, which the statute’s text refers to as “dismemberment abortion.”

SB 8 was passed by Texas lawmakers in 2017, making it illegal for physicians to perform D&E abortions without first causing “fetal demise” in utero by injecting a chemical compound or performing an umbilical cord transection. The law was challenged by several clinics and physicians who argued it threatened the health of their patients and violated their constitutionally protected right to get an abortion.

During a D&E procedure, doctors dilate a woman’s cervix and use instruments, for instance forceps, to pull out the fetal tissue. The procedure is considered the safest and most common method of second-trimester abortion. Waiting for the fetus to no longer be alive before performing removal of the tissue would likely require one or two additional visits from the patient, which would result in the imposition of an undue burden on women seeking abortions, especially lower income women, according to court filings.  

Kyle Hawkins, an attorney representing the state of Texas and Attorney General Ken Paxton, told the en banc panel Thursday that the case hinges on whether it is humane to cause pain and dismemberment to a live fetus. Hawkins many times referred to the practice of removing fetal tissue with forceps in graphic imagery, despite a previous ruling from the Fifth Circuit that said a second-trimester fetus cannot feel pain.

“You cannot cause fetal demise by tearing off the arms and legs with forceps,” Hawkins said in response to a question from U.S. Circuit Court Judge Jennifer Elrod during rebuttal.

Elrod and Chief U.S. Circuit Judge Priscilla Owen, both appointees of George W. Bush, had each sought to clarify at what point during an abortion procedure a doctor might potentially commit a criminal act if SB 8 were to go into effect. Hawkins eventually responded in many separate answers that it’s a crime any time forceps are used on a live fetus.

Attorney Molly Duane for the Center for Reproductive Rights in New York told the appellate judges Thursday that banning the D&E method would unconstitutionally limit women’s abilities to seek abortion. She argued that, given the chance, Texas wouldn’t stop at banning this procedure and before long all abortion methods would come under fire.

U.S. District Judge Lee Yeakel, an appointee of George W. Bush, ruled in favor of clinics and providers following a five-day trial in November 2017. His order said that requiring women to undergo an “unwanted, risky, invasive and experimental procedure in exchange for exercising her right to choose an abortion” was unconstitutional.

A divided three-judge panel of the Fifth Circuit upheld Yeakel’s ruling last October before deciding to rehear the case en banc, which Duane called an unusual move under the circumstances.

U.S. Circuit Judge James L. Dennis, an appointee of Bill Clinton, wrote in the panel’s 22-page ruling that the unnecessary procedures required by SB 8 “expose all women to heightened risks of adverse health consequences, while offering no corresponding health benefit.”

Dennis also said there was “little merit” in Texas’ argument that the D&E procedure causes pain to a second-trimester fetus.

“Major medical organizations, including the American Medical Association, the American College of Obstetricians and Gynecologists, and the Royal College of Obstetricians and Gynecologists, have concluded that fetal pain is not even possible before at least 24 weeks” gestation,” Dennis wrote. 

Duane said after Thursday’s oral arguments that the en banc rehearing was atypical because “it is unusual for an appellate court to, without even waiting for the state to request rehearing, vacate their own panel’s decision and decide to rehear a case en banc.”

Turning to the merits of the case, she said SB 8 is “yet another tactic by politicians in Texas and across the country in their ongoing attempt to ban abortion entirely.”

“Texas has consistently passed laws that make abortion harder to access, pushing patients later and later into pregnancy, and now they seek to prohibit the standard abortion procedure available for patients at that stage in pregnancy,” Duane said in an email. “And this attack is not slowing down: Texas politicians are already planning to introduce various abortion restrictions this legislative session, including a total abortion ban. Their intent is clear.”

The office of Texas’ embattled Republican attorney general, who was recently accused of abuses of office by several staffers, did not immediately provide comment on Thursday’s hearing. But Paxton said in a statement when the Fifth Circuit panel’s ruling was handed down in October that his office was analyzing the decision and weighing its options.

“Live fetal dismemberment is an inhuman abortion procedure that literally tears apart a living, pain-capable child on the cusp of viability,” Paxton said. “The Texas Legislature acted well within constitutional limits when it banned this barbaric practice. I will continue to defend the legislature’s decision.”

The en banc court did not indicate how or when it will rule.

Owen, Elrod and Dennis were joined by U.S. Circuit Judges Edith H. Jones and Jerry Smith, appointees of Ronald Reagan; Carl E. Stewart, a Bill Clinton appointee; Catharina Haynes, another appointee of George W. Bush; James E. Graves, Stephen Higginson and Gregg Costa, appointed by Barack Obama; and Don R. Willett, James C. Ho, Kurt Engelhardt and Cory Wilson, all appointees of Donald Trump.

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