A Texas law restricting the most common form of second-trimester abortion is unconstitutional, a federal judge ruled on Wednesday, saying it would impose an undue burden on women.
A lawyer for abortion providers called the decision “a complete victory,” while state officials immediately said they would appeal. Ultimately, the case could make its way to the United States Supreme Court.
The law — Senate Bill 8, passed this spring — would require doctors to stop the fetus’s heart before performing a dilation-and-evacuation abortion, except in a medical emergency. D&E abortions, as they are known, involve dilating the woman’s cervix and removing the fetus in pieces. This is the safest method available in the second trimester, but opponents say the procedure, which they often refer to as “dismemberment abortion,” is barbaric.
Judge Lee Yeakel of the United States District Court for the Western District of Texas permanently barred Texas from enforcing S.B. 8. (He had previously issued a temporary injunction, blocking the law’s enforcement while the trial played out.)
Supreme Court precedent leads “inescapably to the conclusion that the state’s legitimate interest in fetal life does not allow the imposition of an additional medical procedure on the standard D&E abortion — a procedure not driven by medical necessity,” Judge Yeakel wrote. “Here the state’s interest must give way to the woman’s right.”Continue reading the main story
Alex Lawrence, a lawyer for the plaintiffs — which included Whole Woman’s Health, Planned Parenthood and other abortion providers in Texas — called the decision “a complete victory.”
Within an hour, the Texas attorney general’s office said it would appeal to the United States Court of Appeals for the Fifth Circuit, and “all the way to the U.S. Supreme Court if necessary.”
“Through extraordinary evidence and expert witness testimony, we established that Senate Bill 8 is lawful, treats the unborn with dignity and respect, and protects the integrity of the medical profession,” Attorney General Ken Paxton said in a statement.
Judge Yeakel rejected those arguments, emphasizing the law’s effects both on women seeking abortions and on doctors providing them, who he said would be forced to act against their best medical judgment. His ruling was broad, declaring S.B. 8 “facially unconstitutional” on multiple fronts and noting that the courts had rejected similar laws in other states.
Amy Hagstrom Miller, the chief executive of Whole Woman’s Health, said in an interview that she had always expected the case to be appealed, but that the breadth of Judge Yeakel’s decision made her more optimistic about her side’s prospects.
The Supreme Court has held on multiple occasions that the government cannot impose an “undue burden” on women’s access to abortion before a fetus is viable, even if the statute in question promotes a “valid state interest.” States are allowed to pass laws that “express profound respect for the life of the unborn,” but not if those laws create substantial obstacles for women. The justices affirmed that standard last year in Whole Woman’s Health v. Hellerstedt, which involved another Texas law and many of the same plaintiffs.
“Based on existing precedent alone,” Judge Yeakel wrote, “the Act must fail. Once the Supreme Court has defined the boundaries of a constitutional right, a district court may not redefine those boundaries. Further, the role of the District Court is to preserve a right, not to search for a way to evade or lessen the right.”
Proponents of S.B. 8 have emphasized the graphic nature of D&E abortions; in a statement on Wednesday, Texas Right to Life described a fetus being “torn limb from limb while his or her heart is still beating.”
Judge Yeakel acknowledged that “the evidence before the court is graphic and distasteful,” but concluded: “This evidence is germane only to the state’s interest in the dignity of fetal life and is weighed on the state’s side of the scale. It does not remove weight from the woman’s side. And it does not add weight to tip the balance in the state’s favor.”
He also rejected as unfeasible Texas’ three suggested methods for stopping a fetus’s heart: injecting a chemical called digoxin into the woman’s abdomen; injecting potassium chloride directly into the heart; or inserting instruments through the cervix to cut the umbilical cord.
The state described these procedures as safe and readily available, and said the law therefore posed no undue burden. The plaintiffs said they were untested, painful and potentially dangerous, and noted that they would require multiple doctor’s appointments, making it more difficult for women — especially low-income women and those who live far from an abortion clinic — to obtain abortions.
The only alternative to the D&E method in the second trimester is an induction abortion, in which a doctor induces labor and the woman delivers a nonviable fetus. This is more expensive and more painful for the woman than a D&E abortion, and also requires an overnight hospital stay, whereas D&E abortions can be performed on an outpatient basis.
“The court is unaware,” Judge Yeakel wrote, “of any other medical context that requires a doctor — in contravention of the doctor’s medical judgment and the best interest of the patient — to conduct a medical procedure that delivers no benefit to the woman.”Continue reading the main story