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Texas women can continue to access the the most common procedure used to terminate a second-trimester pregnancy, after a federal appeals court on Tuesday struck down a state law that would have restricted its use.
The law would have required doctors to stop the heart of the fetus before performing a dilation and evacuation abortion – in which doctors use surgical instruments to remove bits of fetal tissue – except in medical emergencies. Those who violated the law could have been sentenced to prison terms.
The measure — which never took effect — has been tied to litigation since the Texas legislature passed it in 2017. It was struck down by an Austin district judge, who said it weighed considerably on a woman’s right to an abortion, and was appealed. before the politically conservative 5th United States Circuit Court of Appeals in New Orleans. Proceedings have been stalled pending a Supreme Court decision this summer.
Justice James Dennis, writing for the majority, said the law ‘requires abortion providers to act contrary to their medical judgment and the best interests of their patient’ by first stopping the fetus’ heart with procedures that are “impracticable”, “dangerous” and provide “no benefit to the woman.”
The requirement could increase the duration of an otherwise dilation and evacuation procedure by one day, which could burden low-income women who “have to wait until the second trimester to have an abortion due to the time it takes to obtain funds to pay for the procedure”. he wrote.
The “burdens of the law far outweigh its benefits,” he wrote. The decision was 2-1, with two Democratic-appointed justices in the majority and Republican-appointed judge Don Willett dissenting.
State attorneys likened the dilation and evacuation method to “dismemberment,” and Attorney General Ken Paxton called it “barbaric.”
Abortion providers who sued to say dilation and evacuation are the safest way to end a pregnancy in the second trimester and that effectively prohibiting them would subject women to medically unnecessary and untested procedures. The requirement to stop a fetus’s heart could lead providers to “essentially experiment” on patients, a doctor said during a lawsuit over 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 childbirth”.
“Labour induction, practically speaking, is not available in Texas, let alone logistically. Asking a patient to trade a simple 10-minute outpatient procedure for hours or even days of hospitalization — again in the midst of a pandemic — is unrealistic,” she said during of an interview on August 12.
The American College of Obstetricians and Gynecologists has noted the procedure is “evidence-based and medically preferred” because it causes the fewest complications for women in the second trimester.
Tuesday’s ruling comes after the 8th U.S. Circuit Court of Appeals lifted a freeze on four abortion restrictions in Arkansas in August, citing the opinion of Chief Justice John Roberts in the recent Supreme Court case. June Medical Services vs. Russo. While Roberts’ pivotal vote in the case then handed a victory to abortion access advocates, he offered a narrow view that lawmakers have broad discretion “in areas where there is uncertainty.” medical and scientific” and that weighing the “costs and benefits of abortion regulation” was not necessarily the job of the courts.
Lawyers representing Texas argued that this presents a different standard than the one applied by the district court that struck down the dilation and venting restriction in 2017. In that decision, the charges of the law were weighed against to its benefits — a balancing test rejected by the June Medical Ruling, the state’s attorneys wrote.
“The Chief Justice has demonstrated that it is not enough to simply show that a law imposes a ‘burden’ on access to abortion, or that a regulation makes abortion more difficult or more expensive. … Rather, “the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the way of a woman seeking to abort a non-viable foetus,'” the lawyers for state, citing the opinion of Roberts.
The court disagreed, with Dennis writing that the judges had agreed that the “balancing test still prevails”.
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