5th Circuit upholds Texas dismemberment abortion ban, says providers can't 'set their own rules'

Texas Gov. Greg Abbott speaks at a news conference in Austin, Texas, U.S., on June 6, 2017. | REUTERS/Jon Herskovitz

The full U.S. Court of Appeals for the Fifth Circuit has ruled that a Texas law banning second-trimester dismemberment abortions can be enforced, reversing earlier rulings.

In an en-banc decision released Wednesday, the 17-member circuit court upheld Texas’ Senate Bill 8, which bans the dilation and evacuation abortion procedure. Critics of the law argue that what is commonly referred to as dismemberment abortion is the most common abortion procedure for terminating second-trimester pregnancies. 

Physicians that violate the law can be punished by a minimum of 180 days to a maximum of two years in jail.

The majority of the circuit court concluded that previous decisions on the 2017 law presented a “false dichotomy” in their reasoning, namely that “either D&Es can be done only by live dismemberment or else women cannot receive abortions in the second trimester.”

“Instead, the record shows that doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use,” reads the majority opinion authored by Trump-appointee Don R. Willett and George W. Bush-appointee Jennifer Walker Elrod.

“The plaintiffs have failed to carry their heavy burden of proving that SB8 would impose an undue burden on a large fraction of women.”

Circuit Judge James L. Dennis, a Clinton appointee who had previously ruled against the law as part of a three-judge panel in 2020, authored a dissenting opinion and joined two other circuit judges.

“Today, in a Sisyphean return to form, our court upholds a Texas law that, under the guise of regulation, makes it a felony to perform the most common and safe abortion procedure employed during the second trimester,” dissented Dennis.

“Further burdening abortion access, many abortion providers will likely decline to perform later-term abortions rather than face the dilemma today’s ruling foists upon them: become a felon or do a risky procedure that is contrary to the doctor’s medical judgment regarding the patient’s best interests.”

The majority argues, however, that the abortion industry should not be allowed to "set their own rules."

"[The district court] did so by holding that SB8 was unconstitutional because live dismemberment is a common abortion method in the second trimester," the ruling states. "This was exactly backwards. Since Casey, we have recognized that abortion doctors do not get to set their own rules. They are not permitted to self-legislate or self-regulate simply by making an abortion method 'common.'"

Dennis argues that the majority "misconstrues the district court’s reasoning, which merely considered what proportion of abortions would be affected by SB8 in evaluating the burden the legislation places on a woman’s right to choose." 

For pro-life activists, the Fifth Circuit decision is a “long-awaited victory," according to Texas Right to Life Director of Media and Communication Kimberlyn Schwartz.

“Anyone can see the cruelty of dismemberment abortions, ripping a child’s body apart while her heart is still beating. We’re grateful the judges recognized this horror,” Schwartz said in a statement

Whole Woman’s Health, an abortion provider that was a plaintiff in the case, argues that the law is focused on "cutting off abortion access, and nothing else.” 

“It should never be a crime for doctors to use their best medical judgment and follow the most current science," Whole Woman's Health President Amy Hagstrom Miller said in a statement. "Texans deserve the best care available, and this law prevents that.”

The law was signed in June 2017 by Gov. Greg Abbott and includes an exception for when "dismemberment abortion is necessary in a medical emergency.”

“The term does not include an abortion that uses suction to dismember the body of an unborn child by sucking pieces of the unborn child into a collection container,” the law reads.

“The term includes a dismemberment abortion that is used to cause the death of an unborn child and in which suction is subsequently used to extract pieces of the unborn child after the unborn child's death.”

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