Judge Throws Out Texas’ Ban on Abortion Procedure

AUSTIN, Texas (CN) – A federal judge in Texas struck down the state’s ban on dilation and evacuation abortions Wednesday, ruling that its valid interest in protecting the life of a fetus does not outweigh a woman’s constitutionally protected right to terminate a pregnancy.

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.

Senate Bill 8, a major victory for anti-abortion activists that Texas Gov. Greg Abbott signed into law on June 6, made 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.

Several abortion providers, including 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 — sued the state, arguing that the D&E law threatened the health of their patients and would violate their constitutional rights.

In a 27-page ruling issued Wednesday afternoon, U.S. District Judge Lee Yeakel sided with the clinics, concluding that “requiring a woman to undergo an unwanted, risky, invasive, and experimental procedure in exchange for exercising her right to choose an abortion, substantially burdens that right.”

In a five-day trial that ended Nov. 8, Texas argued that it 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.

SB 8 refers to D&E procedures with the non-medical term “dismemberment abortion,” and state’s attorneys and their witnesses used this term throughout the trial. The state also 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.

Janet Crepps, an attorney for the Center for Reproductive Rights and one of several attorneys representing the plaintiffs in the case, said during the trial that the state’s attempt to ban D&Es was “part of a larger plan to restrict abortion by banning it one procedure at a time.”

In his opinion, Judge Yeakel said that Texas’ interest in promoting respect for the life of the unborn is valid and legitimate, but does not sufficiently justify “such a substantial obstacle to the constitutionally protected right of a woman to terminate a pregnancy before fetal viability.”

Yeakel said that requiring all women seeking a second-trimester abortion to endure a “medically unnecessary” fetal-demise procedure would increase the duration of what is otherwise a one-day procedure and subject those women to additional risks of complications.

“The court finds that these women would be in a unique position: the court is unaware of any other medical context that requires a doctor —  in contravention of the doctor’s medical judgment and the best interest of the patient —  to conduct a medical procedure that delivers no benefit to the woman,” Yeakel said.

Therefore, the judge said SB8 is “facially unconstitutional.”

“That a woman may make the decision to have an abortion before a fetus may survive outside her womb is solely and exclusively the woman’s decision,” Yeakel said. “The power to make this decision is her right.”

The state is already moving forward with its appeal of the judge’s ruling. Texas Attorney General Ken Paxton filed a notice of appeal seeking Fifth Circuit review of the ruling, and said in a statement that he is hopeful the federal appeals court will “respect the will of the Texas Legislature by upholding Texas’ lawful authority to protect the dignity of innocent unborn children as they die.”

“A five-day trial in district court allowed us to build a record like no other in exposing the truth about the barbaric practice of dismemberment abortions,” Paxton said. “We are eager to present that extensive record before the Fifth Circuit. No just society should tolerate the tearing of living human beings to pieces.”

In a statement Wednesday, Whole Woman’s Health CEO Amy Hagstrom Miller said the judge “ruled on the right side of medicine.”

“Today was just another step in ensuring that all Texans are given the dignity and respect they deserve to make their own healthcare decisions,” she said.

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