The US Court of Appeals for the Fifth Circuit on Wednesday overturned a panel decision and upheld Texas Senate Bill 8 (SB8), which seeks to prohibit a specific type of dilation and evacuation (D&E) abortion method.
In a plurality decision, Circuit Judges Jennifer Walker Elrod and Don Willett wrote that the lower US District Court for the Western District of Texas committed numerous reversible legal and factual errors, applying the wrong test to assess SB8, and disregarding and misreading the Supreme Court precedents.
In a somewhat uncharacteristic move, the appellate court went further by vacating the permanent injunction granted by the district court and rendering its own decision stating that “remanding to the district court would be futile here because the record permits only one conclusion.”
SB8, signed into law by Texas Governor Greg Abbott in May 2017, permits abortion accomplished solely by dilation and suction or by “fetal death” caused without forceps followed by evacuation with forceps, but prohibits doctors from using forceps to separate the fetal tissue and thereby terminate the fetus via “live dismemberment,” except in cases of medical emergencies. It then goes on to define medical emergencies as “life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function…”
Six abortion clinics and five individual doctors (“plaintiffs”) filed suit arguing that SB8 imposes an undue burden on women seeking abortions in the second trimester of pregnancy. In November 2017, Judge Lee Yeakel agreed with the plaintiffs and said 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.” Holding that the state’s interest must give way to the woman’s right in this context, Judge Yeakel concluded that SB8 “intervenes in the medical process of abortion prior to viability in an unduly burdensome manner…” and declared SB8 facially unconstitutional and permanently enjoined the enforcement of the law.
Before the appeal came to the full bench of the Fifth Circuit, a three judge panel similarly blocked the enforcement of SB8 holding that the law amounted to a ban on all D&E abortions because the “live dismemberment” method referred to as such and banned by SB8, is the safest and most commonly used method of second trimester abortions. Thus, the Fifth Circuit panel held that SB8 imposes an undue burden on a woman’s right to obtain an abortion before fetal viability in violation of the Due Process clause of the Fourteenth Amendment to the US Constitution.
However, the state of Texas was granted a rehearing by the full court, and 14 of the 17 appellate judges heard arguments in January with three of the judges recused from the case. The full court on Wednesday stated that viewing SB8 through a “binary framework” wherein women receive abortions in the second trimester only through the live dismemberment type of D&E or not at all is “to accept a false dichotomy.” The court overturned the panel decision and held that there was sufficient evidence to indicate that “doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use.”
Five judges dissented with Circuit Judge James Dennis particularly chiding the plurality stating:
Today, in a Sisyphean return to form…the plurality wrongly declares a single Justice’s concurrence to be precedential in order to impose a variation of the undue burden standard that the Court has explicitly rejected…the en banc plurality fails to defer to the district court’s well-reasoned and well-supported factual findings regarding the burdens and benefits associated with the Texas law, instead substituting its own reading of the evidence to make findings of fact in the first instance…In a final, entirely new sort of error, the plurality faults the district court for “botch[ing]” the large fraction analysis, which asks whether the challenged restriction is an undue burden for a large portion of the women affected by it…But the plurality “bungl[es]” the analysis itself, incorrectly minimizing the statute’s impact by wrongly including in its evaluation a large number of women whose lives will be wholly unaffected by SB8…The court’s decision today will, in the name of “medical ethics,” force many women to unnecessarily undergo what the en banc plurality wrongfully characterizes as “alternatives” to the very common and safe procedure that Texas has banned—painful, invasive, expensive, and in some cases experimental additional treatments that carry with them significantly elevated risks to the women’ health and well-being.
SB8 also included a provision that requires embryonic and fetal tissue remains to be buried or cremated—a provision that was not discussed in this opinion and previously struck down by District Judge David Ezra in September 2018.
This appeals court decision means that violating physicians will face criminal charges and up to two years in prison.
Reaction to the decision has been predictably mixed. CEO of The Center for Reproductive Rights, Nancy Northup, criticized the decision stating that “Texas has been hellbent on legislating abortion out of existence, and it is galling that a federal court would uphold a law that so clearly defies decades of Supreme Court precedent.” However, Texas Right to Life Director of Media and Communication Kimberlyn Schwartz welcomed the ruling and said that she is grateful that judges recognized the horror and cruelty, characteristic of dismemberment abortions.
According to The Center for Reproductive Rights, D&E abortion bans have been struck down in Alabama, Indiana and Kansas, amongst others.