Texas can limit access to the most common procedure used to terminate a second-trimester pregnancy, an appeals court ruled Wednesday, in a ruling likely to end in the U.S. Supreme Court. The decision paves the way for Texas to be the first state in the nation to impose such a ban.
At issue is a law passed by the Texas legislature in 2017 that requires doctors to stop the heart, or cause what they call “fetal death,” before the commonly used dilation-and-evacuate abortion procedure — except in medical emergency. Those who break the law face fines or jail time.
Lawyers representing the abortion clinics that sued the state say there is no way to ensure such “fetal death” and that at least three providers would stop performing dilation and evacuation abortions if the measure was maintained.
The Texas law never went into effect. It was struck down by a district judge in Austin and a three-judge panel of the politically conservative 5th Circuit United States Court of Appeals last October. The 17-member tribunal then decided to rehear the case before all of its judges.
The ruling is another blow to reproductive rights advocates after Texas this year passed a law that will take effect September 1 banning abortions as young as six weeks. This law is also currently being challenged in court.
“This ban is about cutting off access to abortion, and nothing else,” said Amy Hagstrom Miller, president of Whole Woman’s Health. “It should never be a crime for doctors to use their best medical judgment and follow the latest science. Texans deserve the best care available, and this law prevents them.
At a day-long hearing in January, a lawyer representing abortion clinics faced a barrage of questions from judges, one of whom compared the dilation and evacuation procedure to being pulled and quartered and dissecting a frog in high school.
Doctors use surgical instruments to remove pieces of fetal tissue during a dilation and evacuation abortion. The American College of Obstetricians and Gynecologists said the procedure is the “medically preferred” method because it causes the fewest complications for women in the second trimester and fetuses cannot experience pain until they are 24 weeks old.
Texas lawmakers refer to the procedure as “dismemberment abortions,” a non-medical term. A state attorney said the fetus is “capable of pain” and the restriction is not a prohibition but an obligation to “kill the unborn child in a more humane way.”
The 2017 lawsuit was filed by the Center for Reproductive Rights and Planned Parenthood on behalf of Whole Woman’s Health and other state abortion providers, who said the ‘fetal death’ requirement was medically unnecessary. and could lead them to “essentially experiment” on patients.
Proposed methods of causing “fetal death” are “invasive” – sometimes involving a 3- to 4-inch needle inserted into the abdomen or cervix, said Molly Duane, an attorney at the Center for Reproductive Rights. They can pose health risks to patients who want an abortion, such as infection, uterine perforation, cardiac arrest or extramural birth, which gives birth outside of a birth center, she said. .
Abortion providers can use suction to remove a fetus up to 17 weeks after a woman’s last menstrual period; a state attorney said it could cause “fetal death,” but Duane disagreed. The state also argued that clinics used a chemical called digoxin to stop a fetus’ heart, and abortion providers said it could make the procedure safer in consent forms that have were reviewed shortly before the start of the trial.
Two clinics in Texas – out of 21 – were using digoxin at the time of the trial, but only in abortions performed from 18 weeks. Of 3,150 abortions performed after 15 weeks in 2015, fewer than 200 involved digoxin, according to the abortion providers’ legal record.
Duane said providers have used the injection “because they think it’s appropriate for their patients in these gestations,” but digoxin hasn’t caused “fetal death” in about 5 to 10 % of cases. Citing the district court ruling, Duane said doctors cannot know if the fetus’ heart has been stopped until the procedure begins “at which point it’s just too late to turn back.” . No method to induce “fetal death” works in all cases, she said, leaving abortion providers vulnerable to criminal penalties or imprisonment under Texas law.
Most abortions are banned in Texas 22 weeks after a woman’s last period. The woman must have an ultrasound 24 hours before having an abortion, and the doctor must describe the ultrasound, make any heartbeat audible, and provide information. Under Texas law, women may need a digoxin injection 24 hours before the abortion, which requires an additional trip to the clinic.
Joe Pojman, executive director of Texas Alliance for Life, an anti-abortion group, said he hoped the Supreme Court would finish the job of banning abortions altogether.
“While the goal of the pro-life movement remains the complete protection of all unborn babies from abortion, the terrible precedent of the Supreme Court under Roe vs. Wade prevents that,” he said. “Our hope is that the Court will modify or reverse deer and allow states to ban abortion.”
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