Law & the Courts

Federal Court Upholds Texas Ban on Dismemberment Abortions

Pro-life and pro-choice demonstrators outside the U.S. Supreme Court in Washington, D.C., March 4, 2020 (Tom Brenner/Reuters)

Texas is allowed to prohibit a common procedure used to abort second-trimester pregnancies, a federal appeals court ruled Friday.

The court’s decision dealt with a medical operation called dilation and evacuation (D&E), in which the reproductive female anatomy is augmented to accommodate the removal of fetal tissue by surgical instruments and suction.

Rather than accept the technique as a safe procedure, many Republican lawmakers have rejected the euphemisms and decried the procedure as barbaric. Aside from Texas, Republican Pennsylvania legislators in 2016 lobbied to outlaw the method in their state, introducing a bill to ban what the sponsors called “dismemberment.” D&E is mostly used to terminate pregnancies after twelve weeks.

Ninety-one percent of abortions nationally are performed before 15 weeks. For the smaller percentage of abortions performed after the first term, D&E accounts for the majority.

Abortion proponents claim the operation is the safest available after approximately 15 weeks of pregnancy, the American College of Obstetricians and Gynecologists (ACOG) claimed, noting that it yields fewer health complications for women. They insist that other methods are riskier, making the patient more likely to experience infection, uterine perforation or death.

Many other Republican-controlled states, such as Alabama, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Ohio and Oklahoma, have attempted to enact similar prohibitions on the procedure. Texas’s version passed in the state legislature in 2017 officially criminalizing the method and placing the burden on physicians, who could be penalized by fine or two years’ imprisonment for performing it.

“Our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion,” Republican Texas Governor Greg Abbott  said at the signing ceremony. “In Texas we work to save those lives.”

Fielding a challenge to the law, a limited three-judge bench at the U.S. Court of Appeals for the 5th Circuit struck it down last October, arguing that the measure “unduly burdens a woman’s constitutional protected right” to end her pregnancy, the Washington Post reported.

Upon Texas’s appeal of the ruling, however, all 17 judges on the 5th Circuit reviewed the case once more, resulting in a majority decision favoring the ban. The Texas law stipulates that doctors must resort to alternative methods to conduct an abortion in the second-trimester.

The development from the federal appeals court comes as the Supreme Court waits to address a Mississippi case dealing with the state’s “heartbeat” bill that makes abortions after 15 weeks illegal. Some legal scholars predict that the Texas D&E ban could also eventually arrive at the high court.

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