NEW ORLEANS (AP) — A Texas law outlawing an abortion method commonly used to end second-trimester pregnancies was upheld Wednesday by a federal appeals court in New Orleans.
The 2017 law in question has never been enforced. It seeks to prohibit the use of forceps to remove a fetus from the womb — what supporters of the law call a “dismemberment abortion” — without first using an injected drug or a suction procedure to ensure the fetus is dead.
Abortion rights advocates argued that the law, known as SB8 in court records, effectively outlaws what is often the safest method of abortion for women in the second trimester of pregnancy — a procedure medically known as dilation and evacuation. They also argued that fetuses cannot feel pain during the gestation period affected by the law, and that one alternative outlined by the state, the use of suction to remove a fetus, also results in dismemberment.
A three-judge panel of the 5th U.S. Circuit Court of Appeals blocked enforcement of the law last year. But Texas sought, and was granted a re-hearing by the full court.
A majority among the 14 appellate judges who heard arguments in January (three of the court’s 17 active judges were recused) sided with Texas. The opinion, by judges Jennifer Walker Elrod and Don Willett, said “the record shows that doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use.”
Concurring in the result were judges Priscilla Owen, Edith Jones, Jerry Smith, Catharina Haynes, James Ho, Kurt Engelhardt and Cory Wilson.
Judge James Dennis wrote a dissent on behalf of himself and judges Carl Stewart and James Graves. A separate dissent was written by Judge Stephen Higginson, joined by Gregg Costa.
Dennis said the Texas law, “ under the guise of regulation, makes it a felony to perform the most common and safe abortion procedure employed during the second trimester.”
Nancy Northup, president and CEO of the Center for Reproductive Rights, said that group is analyzing the decision and considering all its legal options.
”Texas has been hellbent on legislating abortion out of existence, and it is galling that a federal court would uphold a law that so clearly defies decades of Supreme Court precedent,” Northup said. “At a time when the health care needs of Texans are greater than ever, the state should be making abortion more accessible, not less. There is no question that today’s decision will harm those who already face the greatest barriers to health care.”
If the abortion industry appeals today’s decision, the Supreme Court must answer the case’s dynamic legal question: “Is a dismemberment abortion inhumane enough to warrant legal prohibition?” The evident answer to this targeted question directly undermines some of the Supreme Court’s central premises in their abortion jurisprudence, such as the misconception that pre-viability abortions are more ethical than those that occur after viability.
“Texans celebrate today’s long-awaited victory,” responded Texas Right to Life Director of Media and Communication Kimberlyn Schwartz. “Anyone can see the cruelty of dismemberment abortions, ripping a child’s body apart while her heart is still beating. We’re grateful the judges recognized this horror.”
