The state of Texas on Tuesday lost its bid before a U.S. appeals court to reinstate a law that would have effectively banned the most common abortion procedure used by doctors for terminating second-trimester pregnancies.
A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans sided with abortion rights activists in affirming a 2017 lower-court decision that struck down the law and temporarily barred its enforcement.
Tuesday’s ruling, unless overturned on further appeal, makes the injunction against the abortion restriction permanent.
The 2-1 majority appellate opinion held that the Republican-enacted legislation, known as Senate Bill 8, “unduly burdens a woman’s constitutionally protected right” to terminate her own pregnancy before the fetus is considered viable.
The opinion was written by appellate Judge James Dennis, who was appointed to the 5th Circuit by President Bill Clinton, a Democrat. It upheld an earlier ruling by U.S. District Judge Lee Yeakel of Austin, appointed by Republican President George W. Bush.
The measure outlawed the standard abortion method used after 15 weeks of pregnancy – dilation and evacuation, or D&E – unless the physician first performed a separate, additional procedure in the woman’s body to bring about the demise of the fetus.
That requirement, Dennis wrote, “forces abortion providers to act contrary to their medical judgment and the best interest of their patient” by performing extra procedures that “are dangerous, painful, invasive and potentially experimental.”
The Texas law refers to the D&E procedure, involving the use of suction and forceps to bring fetal tissue through the woman’s cervix, as a “dismemberment abortion,” a non-medical term eschewed by doctors.
The law’s advocates say its restrictions promote the state’s interest in preventing fetal pain, but Dennis in his opinion wrote, “We find little merit in this argument.”
As the appellate decision noted, major medical organizations, including the American College of Obstetricians and Gynecologists and the American Medical Association, have concluded that fetal pain is impossible before 24 weeks of gestation – well beyond the point when abortions are almost never performed.
Although D&Es are the safest abortion method after about 15 weeks of pregnancy – roughly two weeks into the second trimester – nearly 90% of all abortions are performed in the first trimester, according to the Guttmacher Institute, a research group that supports abortion rights.
Texas, the most populous Republican-dominated state, has been at the forefront of efforts to impose abortion restrictions. In 2016, Whole Woman’s Health led a legal fight that ended in the U.S. Supreme Court’s striking down a Texas abortion law that had shuttered nearly half the state’s clinics by imposing strict regulations on doctors and facilities.
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