Fifth Circuit Strikes Texas’ Ban on Common Abortion Procedure

(CN) — A three-judge panel of the Fifth Circuit Tuesday struck down Texas’ attempted ban on the most common abortion procedure performed during the second trimester of pregnancy. 

In 2017, Texas lawmakers passed Senate Bill 8, which made it illegal for physicians to perform a dilation and evacuation abortion without first causing “fetal demise” in utero by injecting a chemical compound or performing an umbilical cord transection. Several clinics and physicians challenged the law, arguing that it threatened the health of their patients and violated their constitutionally protected right to obtain an abortion.

During a D&E procedure, doctors dilate a woman’s cervix and use instruments such as forceps to grasp and evacuate the fetal tissue. The procedure, which is used beginning at 15 weeks of pregnancy, is the safest and most common method of second-trimester abortions.

U.S. District Judge Lee Yeakel, a George W. Bush appointee, sided with the clinics after a five-day trial in November 2017, finding that the state’s requirement that a woman undergo an “unwanted, risky, invasive and experimental procedure in exchange for exercising her right to choose an abortion” was unconstitutional. 

In a 2-1 decision Tuesday evening, the Fifth Circuit panel upheld Yeakel’s ruling. 

U.S. Circuit Judge James L. Dennis, a Bill Clinton appointee, 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.”

“Taken together, these burdens are substantial, exceed any minimal benefits from the law, and thus are undue,” Dennis wrote. “And because SB8 would subject all women seeking a D&E abortion after 15 weeks LMP [last menstrual period] to these undue burdens, SB8 operates as a substantial obstacle in a large fraction of cases in which it is relevant.”

“Indeed, the law imposes an undue burden on every Texas woman for whom it is an actual, rather than irrelevant, restriction,” Dennis added. 

SB 8 did not use the term “dilation and evacuation,” but referred to the procedure as a “dismemberment abortion,” and the state argued that the law advanced its interests in “protecting unborn life” and promoting medical ethics. 

However, as Dennis noted in his opinion Tuesday, the Supreme Court has ruled that the courts must balance the benefits of a law with the burdens it imposes on abortion access. 

The requirement that women seeking a D&E procedure undergo an additional, medically unnecessary procedure would have increased the duration of the procedure from one day to two, which would be “particularly burdensome for low-income women, many of whom must wait until the second trimester to seek an abortion because of the time needed to obtain funds to pay for the procedure,” the ruling states. 

Additionally, the law would have forced abortion providers to act against their own medical judgment and the best interest of their patients.

The state argued the law promoted its interest in “preventing fetal pain,” but Dennis said: “We find little merit in this argument.”

“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 LMP,” Dennis wrote. 

Embattled Texas Attorney General Ken Paxton, who was recently accused of abuses of office by several staffers, said in a statement Tuesday that his office was analyzing the Fifth Circuit’s decision and evaluating 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 added in the statement. “The Texas Legislature acted well within constitutional limits when it banned this barbaric practice. I will continue to defend the Legislature’s decision.”

Amy Hagstrom Miller, the president and CEO of one of the plaintiff clinics, Whole Woman’s Health, called the panel’s decision a win for people across the country.  

“Everyone deserves to benefit from advancements in medicine and from expert medical care, no matter where they live,” Hagstrom Miller said in a statement. “We are proud, once again, to lead the charge challenging bad laws and ensuring that all Texans get the healthcare they deserve.”

Abortion care provider Dr. Bhavik Kumar, one of the plaintiff physicians in the case, said that the ruling means he and his colleagues can continue to provide the “highest quality medical care” to their patients.”

“The state’s attempt to interfere in private, deeply personal health care decisions by banning the most common method of abortion at this stage of pregnancy would have put patients in danger and punished doctors for using our best medical judgment, training, and expertise,” Kumar said. “Unfortunately, extremist politicians’ ongoing attempts to restrict access to abortion — method by method, state by state — until it is completely out of reach are all too familiar to physicians like myself. Thankfully, the court today affirmed what we have always known: that private medical decisions should stay between patients and the doctors they trust with their health care.”

U.S. Circuit Judge Carl E. Stewart, a Bill Clinton appointee, joined Dennis in the opinion. U.S. Circuit Judge Don Willett, a Donald Trump appointee, dissented. 

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