JudicialState SenateDismemberment Abortion Ban Ruled Unconstitutional by Fifth Circuit

The court ruled 2-1 that requiring abortion providers to "cause fetal demise" inside the womb, instead of on the way out, is burdensome.
October 14, 2020
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The U.S. Court of Appeals for the Fifth Circuit ruled that Texas’ law against dismemberment abortions is unconstitutional.

According to documents filed yesterday, the court found that Senate Bill 8, which outlawed abortions by dismemberment, placed an undue burden on women seeking abortions by requiring providers to perform the act while the child is still inside the uterus instead of on the way out.

Dismemberment abortions, also called dilation and evacuation or D&E abortions, sever the fetal tissue as the body leaves the womb. By outlawing such abortions except in cases of emergency, SB 8 essentially required abortion providers to abort the child in the womb before removal. The state proposed three alternatives to dismemberment to achieve “fetal demise in utero”: injecting digoxin into the child or amniotic fluid, injecting potassium chloride directly into the child’s heart, or cutting the umbilical cord. The court ruled these processes to be an “invasive” and “extra, otherwise unnecessary procedure” that placed an undue burden on women seeking abortions.

“Because fetal tissue separates as a physician removes it from the uterus during the D&E procedure, SB 8 prohibits such abortions unless the physician first ensures fetal demise in utero—an invasive, additional step that is not part of the D&E procedure,” the ruling reads.

“[SB 8] thus requires an abortion provider performing a D&E to carry out an extra, otherwise unnecessary procedure in the woman’s body to bring about fetal demise.”

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The majority opinion, issued by Justices James Dennis and Carl Stewart, affirmed the judgment of the U.S. District Court for the Western District of Texas.

The challenge to the law, defended in court by Texas Attorney General Ken Paxton as well as the criminal district attorneys for Tarrant and McLennan Counties, came from various abortion providers and physicians including branches of Planned Parenthood and Whole Woman’s Health. As summarized in the ruling, Paxton and the defendants argued that aborting the child within the womb does not constitute an obstacle to abortion.

“[The state] responds that the Act does not impermissibly restrict abortion access because there are procedures that cause fetal death in utero that must be used in addition to D&E to ensure an SB 8-compliant abortion,” the ruling reads.

“The State insists that SB 8 does not constitute an undue burden because several ‘alternative methods’ of causing fetal demise are available and safe.”

In response, the court observed that “fetal-demise procedures are not, by definition, alternative procedures because a patient who endures such a procedure must still undergo the entirety of a standard D&E.”

The majority opinion holds that the language of SB 8, though graphic, fairly describes the process of D&E abortions and notes that they are the most common method of abortion in Texas and the nation after the first 15 weeks of pregnancy.

Justice Don Willett dissented and will file a dissenting opinion.

SB 8 was authored by Senator Charles Schwertner (R-Georgetown), an orthopedic surgeon and former member of the Texas House, and Sens. Donna Campbell (R-New Braunfels), Lois Kolkhorst (R-Brenham), Jane Nelson (R-Fort Worth), and Charles Perry (R-Lubbock) also co-authored the bill.

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Isaiah Mitchell

Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.