Federal Court Strikes Down Texas Effort To Ban Common Abortion Procedure

The appeals judge said the measure banning the standard D&E method "unduly burdens a woman's constitutionally-protected right" to an abortion."

In a win for abortion rights groups, a federal appeals court has struck down a Texas law that had banned an abortion procedure that is commonly used after 15 weeks of pregnancy.

The U.S. Court of Appeals for the 5th Circuit decided Tuesday to lift the state’s ban on dilation and evacuation (D&E), a standard method of abortion in the second trimester of pregnancy. The Center for Reproductive Rights filed a lawsuit in 2017 challenging the ban on behalf of Whole Woman’s Health in partnership with Planned Parenthood.

The law “unduly burdens a woman’s constitutionally-protected right to obtain a previability abortion,” Judge James L. Dennis wrote in the decision. He added that the law “also forces abortion providers to act contrary to their medical judgment and the best interest of their patient by conducting a medical procedure that delivers no benefit to the woman.”

The Texas measure, which had been blocked from taking effect, prohibited what it called “dismemberment abortions,” a term adopted by abortion rights opponents to target D&E procedures. Doctors who violated the ban would have faced up to two years in prison.

But a D&E abortion is the safest and most common method of second-trimester abortions in Texas and nationwide, with the procedure occurring after the first 15 weeks of pregnancy as measured from a person’s last menstrual period.

In the first stage, a physician dilates the cervix. In the second stage, also known as evacuation, the physician uses suction, forceps or other tools to remove the fetus through the dilated cervical opening. Just 11% of abortions nationwide take place after the first trimester, and about 95% of them are done using D&E, according to the Guttmacher Institute.

Texas said that the law did not impermissibly restrict abortion access because there are procedures causing fetal death in utero that must be used in addition to D&E to ensure an abortion compliant with the law. Eight licensed abortion clinics and three abortion providers, who were the plaintiffs in the case, argued that the additional procedures would place “a substantial obstacle to a woman’s right to a second trimester D&E abortion.”

In 1992, the Supreme Court ruled that states can regulate abortion as long as they don’t impose an “undue burden” on those seeking the procedure. The court defines an undue burden as a state regulation that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion,” as explained in Planned Parenthood v. Casey.

“Today’s decision puts a stop to Texas’ strategy to ban one abortion procedure after another until it is all but inaccessible,” Nancy Northrup, president of the Center for Reproductive Rights, said in a statement. “Politicians should never decide what medical procedures a patient can and cannot receive. This ruling follows decades of Supreme Court precedent and the Fifth Circuit has joined every other federal court in striking down these types of bans.

It was unclear whether Texas would appeal the ruling.

Tuesday’s ruling comes months after the Supreme Court struck down a Louisiana law in June Medical Services v. Russo. The law would have closed all but one of the remaining health centers providing abortion procedures in the state, and it had the potential of gutting Roe v. Wade. The high court in 2016 struck down an identical law in Texas that closed down half the abortion clinics in the state.

“Today’s ruling should send a clear message to Gov. [Greg] Abbott and [Attorney General Ken] Paxton that they will not be able to succeed in their cruel crusade to ban abortion. While we may have a victory today, the fight continues,” said Alexis McGill Johnson, president of the Planned Parenthood Federation of America.

“Over the past year alone, Gov. Abbott and AG Paxton have used every tool at their disposal to hurt our patients, from bogus COVID-19 executive orders aimed at exploiting the pandemic to defending unconstitutional laws in the courts,” she added. “It is all part of their strategy to restrict abortion access until it’s completely out of reach for millions of people.”

Earlier this year, Abbott and Paxton implemented a temporary ban on abortion in Texas for about one month. While the ban was in effect, patients were forced to travel hundreds of miles in order to access necessary medical care.

The ruling came in the same week that the Senate Judiciary Committee’s confirmation hearing for President Donald Trump’s Supreme Court nominee, Amy Coney Barrett, is underway. The conservative judge’s nomination has raised concerns that she would join other conservatives on the court to overturn Roe v. Wade and take away its protection of abortion rights.

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