AUSTIN, Texas (CN) – In a five-day trial that ended Wednesday, Texas health providers told a federal judge that a new law banning dilation and evacuation abortion is unconstitutional and part of the state’s plan to chip away at a woman’s right to choose by banning abortion one procedure at a time.
Senate Bill 8, a major victory for anti-abortion activists that Texas Gov. Greg Abbott signed into law on June 6, makes it illegal for physicians to perform a dilation and evacuation procedure without first causing “fetal demise” in utero, either by injecting a chemical compound or performing an umbilical cord transection.
The bill was supposed to go into effect Sept. 1, but U.S. District Judge Lee Yeakel temporarily blocked its implementation when he granted the plaintiffs — including Whole Woman’s Health and Planned Parenthood — a restraining order in August.
Janet Crepps, an attorney for the Center for Reproductive Rights and one of several attorneys representing the plaintiffs in the case, said during the bench trial that the bill would require women to undergo “invasive and unnecessary” medical procedures prior to having a second trimester abortion, making those abortions more dangerous and expensive.
“SB 8 will turn back the clock on advances in medical care that have made second trimester abortions both safe and accessible, forcing physicians to either stop providing D&Es or risk criminal prosecution,” Crepps said.
Attorneys for Texas told Judge Yeakel that the state has an interest in promoting respect for the “dignity” of the life of the unborn and that the law does not impose any significant health risks for women.
“It would be a dark irony, your honor, if the same constitution that required states … to provide a humane execution for those convicted of the most heinous crimes in our society, would be the same constitution that would bar the state of Texas from banning the living dismemberment of the unborn child,” First Assistant Attorney General Darren McCarty said.
Throughout the trial, state’s attorneys and their witnesses referred to D&E procedures as “dismemberment abortions,” a non-medical term that is also used in SB 8. The state shared with the court graphic descriptions and images of the procedure, including a picture of a tray of fetal remains, only discernable as such because of a visible hand.
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.
“I would suggest the state of Texas’ interest in banning a living dismemberment from results like that is a sign of a progressive society,” McCarty said.
Crepps, however, said that the state had “no rational basis” on which to ban D&E procedures while suction aspiration abortion procedures, used during the first trimester of pregnancy, are unregulated.
“One fact that is uncontested in this case is that during a D&E the fetus, which is alive at the beginning of the evacuation process is removed in pieces from the uterus,” Crepps said. “The same is true for suction aspiration procedures.”
Crepps said the state’s attempt to ban D&Es is “part of a larger plan to restrict abortion by banning it one procedure at a time.”
Much of the trial was a battle between the state’s and plaintiffs’ expert witnesses, who offered contradictory opinions as to whether fetuses feel pain and whether “fetal demise” methods, such as injection of potassium chloride or a drug called digoxin, are safe and effective during second-trimester abortions.
“Both sides have put on an impressive array of expert witnesses,” Yeakel said. “How can this court possibly determine which experts are correct, and make a medical evaluation in weighing to determine who is correct, when I’m faced with that type of evidence?”
The judge asked Crepps whether such an evaluation was even necessary, if he finds that an undue burden on a woman’s right exists regardless of whether the “fetal demise” procedures are safe or not.
“Do I get to the question of the safety of the three methods … if the Supreme Court has said that the state’s regulation must, in its appropriate medical judgment, be for the health or life of the mother,” Yeakeal said. “And I have not heard any evidence over the past five days that those procedures affect the health or life of the mother.”
In Whole Woman’s Health v. Hellerstedt, the U.S. Supreme Court ruled last year that restrictions on legal abortion cannot unduly burden a woman without providing a legitimate medical benefit.
The case dealt with the constitutionality of another Texas law, House Bill 2, which specified that abortions be performed in hospital-style surgical centers by doctors with admitting privileges to hospitals within 30 miles.
Yeakel also heard that case, and ruled against the state, but the Fifth Circuit reversed on appeal.
Given the Supreme Court’s discussion in Hellerstedt about the importance of evidentiary findings, and the likelihood that the SB 8 case will also end up in the Fifth Circuit, Crepps said that it would be prudent for the judge to reach a conclusion as to the safety of the proposed “fetal demise” methods.
Yeakel will issue a written opinion sometime in the future, and may do so before Nov. 22, when the temporary restraining order expires.
Texas Attorney General Ken Paxton said in a statement Wednesday that he believed the state’s evidence “overwhelmingly” proved the lawfulness of SB 8.
“I am hopeful the district court will find that Texas has an interest in protecting and fostering respect for human life, including unborn life, and that it will uphold the state’s lawful authority to protect the life and dignity of unborn children from barbaric dismemberment abortions,” Paxton said.
Whole Woman’s Health CEO Amy Hagstrom Miller said in a statement Thursday that the case was about “an abortion ban — plain and simple.”
“The state tried to make a case that the restrictions they put forward are no big deal for women and providers to comply with,” Miller said. “But, the state misses the point completely. These restrictions have no medical basis nor added health benefit whatsoever. This is yet another attempt to politically interfere with our healthcare decisions and Texans deserve better.”
Miller said she’s prepared to, once again, take a case all the way to the Supreme Court.
A similar case was recently tried in federal court in Alabama. In October, a federal judge there ruled that the state could not enforce an act called the Alabama Unborn Child Protection from Dismemberment Abortion Act, which also bans D&Es without the induction of “fetal demise.”
Alabama said that it plans to appeal the ruling.