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Federal court strikes down Texas ban on second trimester abortion procedure

[JURIST] The US District Court for the Western District of Texas [official website] struck down [opinion, PDF] as unconstitutional Texas SB 8 [text, PDF], which effectively banned the country's most commonly used procedure of second trimester abortion known as "dilation and evacuation." (D&E).

Referring to earlier Supreme Court [official website] decisions in Gonzales v. Carhart and Stenberg v. Carhart, the court ruled that SB 8 imposes "an undue burden upon a woman's right to have an abortion and are therefore unconstitutional ... 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."

The bill was signed into law [JURIST report] in June by the Texas Legislature [official website], and amends the state's family code and health and safety codes. Essentially, these amendments significantly change various provisions of the family code, including the definition of abortion itself and when an act is "not" deemed an abortion. Additionally, the law prohibits the D&E procedure unless the physician stops the heart of the fetus before it is removed from the woman, essentially banning partial-birth, and what SB 8 terms "dismemberment" abortions.

SB 8 imposes criminal penalties for physicians who perform the D&E procedure including imprisonment on charges of felony. Furthermore, the law opens up options for the father of the fetus or an under-aged mother's parents to bring civil suits against physicians and other individuals involved in the procedure. The law also creates significant reporting requirements for physicians and mandates the state to establish and maintain a registry of "participating funeral homes and cemeteries" to provide free or low-cost burial services for fetal tissues.

Section 171.154(b) of SB 8, in anticipation of legal or constitutional challenge, contains various safe harbors enable the state to continue enforce the ban to the maximum possible extent.

Upon filing of a suit [JURIST report] the following month, the court issued a temporary restraining order against the law in August, enjoining the state of Texas from enforcing the act until November 22 - i.e. the date of this decision. The bench trial commenced early this month with plaintiffs represented by such organizations as Planned Parenthood and Whole Woman's Health [advocacy websites], and various medical doctors.

Judge Lee Yeakel, in his opinion, addressed various alternative procedures offered by the state and rejected virtually all of them. Yeakel wrote that the use of digoxin or potassium chloride injections to stop the heart of the fetus before removal is not reliable for inducing fetal demise, that several factors "make it difficult or impossible for the needle to reach the fetus," and that the injections "would require a woman be subjected to an arguably experimental procedure without any counterbalancing benefits." Yeakel also noted the heightened risks to a woman carried by potassium chloride injections.

The court thus concluded:

under the Act, all women seeking a second-trimester abortion at 15 weeks would have to endure a medically unnecessary and invasive procedure that increases the duration of what otherwise is a one-day standard D&E procedure. The Act further subjects those women to additional risks of complications ... the court is unaware 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. ... Words are important. That a woman may make the decision to have an abortion before a fetus may survive outside her womb is solely and exclusively the woman's decision. The power to make this decision is her right. The State's legitimate concern with the preservation of the life of the fetus is an interest having its primary application once the fetus is capable of living outside the womb. The court must weigh the right against the interest. ... The right is absolute and the interest is given only marginal consideration before fetal viability. The Act dictates fetal demise at a time before fetal viability. The Act establishes a point of fetal demise before fetal viability. In so doing, the Act does not further the health of the woman before the fetus is viable.

Whole Woman's Health President and CEO, Amy Hagstrom Miller, welcomed the ruling [Center for Reproductive Rights press release] stating that: "The pattern of incessant and dangerous attacks on women’s healthcare has not stopped. That is why we are here, and why we are thrilled to prevail." Texas Attorney General Kenneth Paxton [official website] stated his intention to immediately appeal [press release] the decision stating: "During a five-day trial this month in district court, we created a record unlike any other in exposing the horrors of dismemberment abortions. No just society should tolerate the tearing of living human beings to pieces. ... We will defend Senate Bill 8 all the way to the U.S. Supreme Court, if necessary.”"

Seven other states have imposed similar bans [Politico report] with six of them facing legal challenge.

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