Texas Can Ban Common Form of Second-Trimester Abortion, Appeals Court Rules
A federal appeals court on Wednesday upheld a Texas law banning the most common form of second-trimester abortion, ruling that a lower court had erred in finding that the law imposed “an undue burden on a large fraction of women.”
At issue is a Texas law that was passed in 2017 but has not yet been in effect because of legal battles. The law, known as Senate Bill 8, prohibits a dilation-and-evacuation abortion method and requires doctors to use alternative abortion methods, according to Wednesday’s decision by the U.S. Court of Appeals for the Fifth Circuit.
A Federal District Court judge had found that the 2017 law “imposes an undue burden on a large fraction of women” because it “amounted to a ban on all D&E abortions.”
That interpretation is wrong, the appeals court said on Wednesday. Records show that “doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use,” according to Wednesday’s ruling.
The lower court “committed numerous, reversible legal and factual errors,” according to the decision on Wednesday.
“Accordingly,” it continued, “we VACATE the district court’s permanent injunction.”
The Texas law is one of many abortion restrictions enacted in recent years by Republican-controlled state legislatures emboldened by the Supreme Court’s rightward shift. The Supreme Court is set to hear arguments in the fall over a Mississippi law that bans most abortions after 15 weeks of pregnancy, a direct challenge to the constitutional right to abortion established in 1973 in Roe v. Wade.
The Texas case, too, may reach the Supreme Court.
Over the past decade, abortion opponents have scored major victories in state legislatures, with restrictions whittling down access through much of the Midwest and the South.
A record was set in the 2021 legislative season for the most abortion restrictions signed into law in a single year in the United States, according to the Guttmacher Institute, which tracks abortion statistics and supports abortion rights.
Under the Texas law, doctors must first stop the fetus’s heart before performing the dilation-and-evacuation abortion, except when there is a medical emergency. To do that requires dilating a woman’s cervix and removing the fetus in pieces.
In the second trimester of pregnancy, it is “the safest and medically preferred abortion procedure” and “results in fewer medical complications” than other abortion methods, according to a statement in 2019 from the American College of Obstetricians and Gynecologists.
Abortion opponents, who refer to this method as “dismemberment abortion,” call the procedure barbaric.
The law in Texas has been tied up in court battles for years. In 2017, Judge Lee Yeakel of the United States District Court for the Western District of Texas permanently barred Texas from enforcing S.B. 8.
Supreme Court precedent leads “inescapably to the conclusion that the state’s legitimate interest in fetal life does not allow the imposition of an additional medical procedure on the standard D&E abortion — a procedure not driven by medical necessity,” Judge Yeakel wrote at the time. “Here the state’s interest must give way to the woman’s right.”
Within an hour, the Texas attorney general’s office announced plans to appeal Judge Yeakel’s decision.
Elissa Graves, legal counsel for Alliance Defending Freedom, a group that supports the Texas law, welcomed Wednesday’s decision. “Texas has the right to respect the life of unborn children, and it did so when it chose to strictly limit the gruesome procedure of dismemberment abortions,” Ms. Graves said in a statement. The law, she said, “is both humane and constitutional.”
Amy Hagstrom Miller, president of Whole Woman’s Health, a plaintiff in the case, called the law an unprecedented intrusion into the doctor-patient relationship. “In no other area of medicine would politicians consider preventing doctors from using a standard procedure,” Ms. Miller said in a statement. “It should never be a crime for doctors to use their best medical judgment and follow the most current science.”
Adam Liptak contributed reporting.