Women in Texas can continue to access the safest and most common procedure used to end a pregnancy in the second trimester, after a federal appeals court Tuesday struck down a state law that would have curtailed its use.
The law would have required doctors to stop the fetus’ heart before a dilation and evacuation abortion, except in the case of a medical emergency. Those who violated the law could have faced prison time.
The measure has been tied up in litigation since it was passed by the Texas Legislature in 2017. It was struck down by a district judge in Austin, who said it substantially burdened a woman’s right to an abortion, and was appealed before the politically conservative U.S. 5th Circuit Court of Appeals in New Orleans. The proceedings were stalled pending a Supreme Court case decided this summer.
During a dilation and evacuation procedure, doctors use surgical instruments to remove pieces of fetal tissue. The state’s lawyers have likened the method to “dismemberment” and Attorney General Ken Paxton has called it “barbaric.”
The 2017 lawsuit was brought by the Center for Reproductive Rights and Planned Parenthood on behalf of Whole Woman's Health and other providers in the state. They say dilation and evacuation is the safest way to end a second-trimester pregnancy, and that an effective ban on it would subject women to medically unnecessary and untested procedures. The requirement to stop a fetus' heart beat could lead providers to “essentially experiment” on patients, one doctor said in a trial about the law in 2017.
Molly Duane, an attorney with the nonprofit Center for Reproductive Rights, said the alternative to a dilation and evacuation procedure is medical induction — “essentially giving birth.”
“What we know after litigating in Texas for years is that hospitals are loathe to allow abortion procedures of any kind to occur,” she said in an Aug. 12 interview. “Labor induction just practically speaking, isn't available in Texas, let alone logistically speaking. Asking a patient to exchange a simple outpatient 10 minute procedure for hours if not days inpatient in the hospital — again in the middle of a pandemic — is unrealistic.”
The American College of Obstetricians and Gynecologists said the procedure is “evidence-based and medically preferred” because it results in the fewest complications for women in the second trimester.
Tuesday’s decision comes after the 8th U.S. Circuit Court of Appeals lifted a block on four Arkansas abortion restrictions in August, citing Chief Justice John Roberts’ opinion in the recent Supreme Court case June Medical Services v. Russo. While Roberts’ crucial vote in that case awarded a victory to advocates of abortion access then, he issued a narrow opinion that said lawmakers have wide discretion and that weighing the “costs and benefits of an abortion regulation” was not necessarily a job for the courts.
Lawyers representing Texas argued this presents a different standard than was applied by the district court who struck down the dilation and evacuation restriction in 2017. In that ruling, the burdens of the law were weighed in relation to its benefits — a balancing test rejected by the June Medical decision, the state’s lawyers wrote.
“The Chief Justice demonstrated that is it not enough to show merely that a law imposes some ‘burden’ on abortion access, or that a regulation makes abortion more difficult or expensive… Rather, ‘the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non viable fetus,’" the state’s lawyers wrote, citing Roberts’ opinion.
Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.