Texas Abortion Ban Lands in Fifth Circuit

NEW ORLEANS (CN) – Texas’ ban on a common abortion procedure performed during the second trimester of pregnancy came before a Fifth Circuit panel Monday, with arguments focused on the safety of the method and potential alternatives.

The case at issue, Whole Woman’s Health v. Paxton, involves the dilation and evacuation procedure, which is used to completely remove live fetal tissue from a woman’s uterus during abortions performed after 15 weeks of pregnancy.

Texas lawmakers banned the procedure last year as part of Senate Bill 8, but U.S. District Judge Lee Yeakel in Austin blocked the ban, finding it creates an unconstitutional burden to accessing abortion.

Proponents of the procedure call it “the most common and very safe” method of ending pregnancy after 15 weeks, but opponents say it is “barbaric” and causes “ghastly dismemberment.”

Heather Gebelin Hacker, assistant solicitor general for the Texas attorney general’s office, used graphic details during the hearing to explain how limbs are supposedly torn from a live fetus during the procedure.

“It is illegal to kill an animal that way in Texas, we wouldn’t  execute a murderer that way, and notably the abortion providers don’t tell women that that’s what the procedure entails,” Hacker said.

She said other possible methods include potassium chloride injections or umbilical cord transection. Hacker said the injections have not been cited for any complications in the past five years and are already used by some abortion providers.

She said SB 8 simply bans the dilation and evacuation method but wouldn’t restrict abortion in general in the state.

But Janet Crepps, senior counsel for the Center for Reproductive Rights and one of several attorneys representing the plaintiffs in the case, said the state’s law is “invasive, medically unnecessary and poses a dangerous risk” to women.

She said potassium chloride injections put women at risk for infection and hospitalization, while umbilical cord transection is not even always possible and carries a risk or hemorrhaging.

The alternative procedures suggested by the state “leave women and physicians in a wholly untenable situation,” Crepps said during Monday’s hearing.

“The state has no basis to make the conclusion that these methods are safe,” she said.

An August ruling from the 11th Circuit blocked Alabama’s ban on dilation and evacuation abortions. The three Fifth Circuit judges on Monday questioned lawyers for both sides about the Alabama ruling.

A representative for Texas Attorney General Ken Paxton said in a statement that the procedure at issue “kills fetuses by using forceps to tear them apart limb by limb while they are still alive, causing the unborn child to bleed to death in their mother’s womb.”

But medical professionals say dilation and evacuation is the safest abortion procedure available during the second trimester.

“This is another example of Texas politicians trying to play doctor in the Legislature, without any supporting scientific evidence or medical facts,” Amy Hagstrom Miller, president and CEO of plaintiff Whole Women’s Health and Whole Women’s Alliance, said in a statement.

“This ban ties the hands of physicians and harms women,” she added.

So far, every court that has reviewed similar bans has blocked the laws from taking effect, including in Alabama, Arkansas, Kansas, Oklahoma, and Kentucky.

Monday’s panel was made up of Chief U.S. Circuit Judge Carl E. Stewart and U.S. Circuit Judge James L. Dennis, both appointees of Bill Clinton, as well as U.S. Circuit Judge Don R.Willett, an appointee of President Donald Trump.

The judges didn’t say when they will rule. Depending on the outcome, the case could become one of the first reproductive rights cases heard by the U.S. Supreme Court since Justice Brent Kavanaugh’s appointment, which solidified a conservative majority on the nation’s highest court.

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