Judge Halts New Texas Anti-Abortion Law, for Now

AUSTIN, Texas (CN) – A federal judge temporarily blocked part of a new anti-abortion law in Texas banning dilation and evacuation procedures, considered to be the safest and most common method used to terminate a pregnancy during the second trimester.

U.S. District Judge Lee Yeakel in Austin federal court granted Texas abortion providers a temporary restraining order Thursday to block the law, which was supposed to go into effect Friday.

The new law, signed by Texas Gov. Greg Abbott on June 6, was a major victory for anti-abortion activists this session, but opponents say it’s the latest in a long string of attempts by the Lone Star State to place burdensome, medically unnecessary and unconstitutional restrictions on women’s access to abortion.

In addition to banning dilation and evacuation procedures, commonly referred to as D&E procedures, Senate Bill 8 prohibits the donation of fetal tissue from abortions for medical research and requires abortion providers to bury or cremate fetal tissue.

Similar rules requiring the burial of fetal remains, adopted by the Texas Department of State Health Services in November, were blocked by a federal judge in January.

In the case against SB 8, Texas abortion providers, including lead plaintiff Whole Woman’s Health, are specifically challenging the portion of the law that bans D&E procedures.

Whole Woman’s Health — which won a landmark case in the U.S. Supreme Court last year striking down parts of another Texas anti-abortion law — claims that the ban on D&E threatens the health of their patients, impedes patients’ access to abortion care, and violates their constitutional rights.

“Specifically, a ban on D&E procedures imposes an undue burden on women seeking second-trimester abortions,” the provider said in its complaint filed July 20. “In addition, to the extent that any physician can continue to provide D&E procedures, the ban violates plaintiffs’ patients’ right to bodily integrity because it would require them to accept unnecessary, invasive, and potentially painful medical procedures, in order to access their constitutional right to abortion.”

In Whole Woman’s Health v. Hellerstedt, the Supreme Court ruled that restrictions on legal abortion cannot unduly burden a woman without providing a legitimate medical benefit.

According to the provider’s complaint, a significant number of women in Texas seek abortions between 14 and 22 weeks into their pregnancy, for a variety of personal and medical reasons. For example, the identification of major fetal anomalies most commonly occurs in the second trimester, and women may choose to terminate a pregnancy for that reason.

SB 8 refers to D&E procedures with the non-medical term “dismemberment abortion.”

During the procedure, physicians use a combination of suction and forceps to remove a fetus and other tissue from the uterus. As the cervical opening is smaller than the fetus at this stage of pregnancy, separation of the fetal tissue usually occurs as the doctor removes it.

It’s a fast, outpatient procedure. The only other alternative to a D&E procedure during the second trimester is induction abortion, where a doctor uses medication to induce labor and delivery of a nonviable fetus. This procedure can last hours or days, and is more painful and can be more medically dangerous for the patient.

Texas has argued that physicians can still perform D&E procedure, provided that they cause “fetal demise” in utero before starting the evacuating phase of the procedure, and that there are at least “three safe and effective methods of inducing fetal demise.”

The plaintiffs, however, contend that there are no reliable, safe and available methods of causing “fetal demise” in an outpatient setting.

An injection of potassium chloride directly into the fetal heart, for example, would cause demise, but would also be fatal to the woman if administered incorrectly.

The state’s suggestions of injecting potassium chloride — or another drug called digoxin — would also violate current Texas law prohibiting off-label prescription of an abortion-inducing drug, the plaintiffs say.

In the temporary restraining order, Judge Yeakel said Thursday that Texas cannot “pursue its interests in a way that denies a woman her constitutionally protected right to terminate a pregnancy before the fetus is viable.”

“This court finds no authority for holding that government-mandated medically unnecessary, untested, or a more invasive procedure, or a more complicated and risky procedure with no proven medical benefits over the safe and commonly used banned procedure, is a permissible means of regulating previability abortions,” Yeakel said.

The judge concluded that the plaintiffs proved that, without a temporary restraining order, patients would suffer irreparable harm by being unable to access the most commonly used and safest second-trimester abortion procedure “ahead of any substantial constitutional review of the act.”

Marc Rylander, director of communications for Texas Attorney General Ken Paxton, said in a statement Thursday that “dismemberment abortions are gruesome and inhumane, which makes it troubling that a district court would block Texas’ lawful authority to protect the life of unborn children from such a barbaric practice.”

“The Texas Attorney General will continue to defend our state’s legal right to protect the basic human rights and dignity of the unborn,” Rylander said.

The temporary restraining order expires Sept. 14, when the parties will return to court for a preliminary injunction hearing.

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