An appeals court decided Wednesday that Texas can restrict access to the most popular technique used to end a pregnancy in the second trimester, in a ruling that is likely to end up before the United States Supreme Court. The decision sets the path for Texas to become the first state in the US to enact such a ban.
The Texas Legislature enacted a law in 2017 that compels doctors to stop the heart, or induce “fetal death,” before performing the frequently used dilation and evacuation abortion technique – unless there is a medical emergency. Those who break the law may risk fines or imprisonment.
Lawyers for abortion clinics that sued the state claim there is no way to assure such “fetal death,” and that if the bill is upheld, at least three providers will stop performing dilation and evacuation abortions.
The Texas law was never implemented. It was overturned last October by a district judge in Austin and a three-judge panel on the politically conservative 5th U.S. Circuit Court of Appeals. Later, the 17-member court decided to rehear the matter in front of all of its justices.
Law Is Challenged
The judgment is another setback for reproductive rights supporters after Texas enacted legislation this year prohibiting abortions as early as six weeks, which goes into effect on September 1. This law is also being challenged in court.
A lawyer for the abortion clinics received a torrent of questions from the judges at a one-day hearing in January, one of whom compared the dilation and evacuation process to being drawn and quartered and dissecting a frog in high school.
During a dilation and evacuation abortion, doctors utilize surgical instruments to remove fetal tissue. According to the American College of Obstetricians and Gynecologists, the operation is the “medically preferred” approach since it results in the fewest problems for women in their second trimester and because fetuses cannot feel pain until they are 24 weeks old.
The practice is referred to by Texas lawmakers as “dismemberment abortions,” a non-medical phrase. According to state law, the fetus is “pain-capable,” and the restriction is not a prohibition, but rather a need to “murder the unborn child more compassionately.”
The Center for Reproductive Rights and Planned Parenthood filed the case in 2017 on behalf of Whole Woman’s Health and other abortion clinics in the state, who said the “fetal death” criterion was medically unnecessary and might force them to “basically experiment” on patients.
According to Molly Duane, an attorney with the Center for Reproductive Rights, the procedures suggested to cause “fetal death” are “invasive,” often including a 3- to 4-inch needle put into the abdomen or cervix. They can offer health hazards to individuals seeking abortions, including infection, uterine perforation, cardiac arrest, or extramural delivery (giving birth outside of a child-birth facility).
Abortion doctors can employ suction to remove a fetus up to 17 weeks after the woman’s last menstrual cycle; a state lawyer warned that this could result in “fetal death,” but Duane disagreed. The state also claimed that clinics used a drug called digoxin to halt a fetus’ heart, and that abortion practitioners said in permission forms that were updated soon before the case that it might make the operation safer.