The law, passed in the 85th Legislature as Senate Bill 8, bans abortions that involve cutting the body into pieces as it leaves the womb except in emergencies. Also called dilation and evacuation (D&E) abortions, they are the most common method of abortion in Texas and the nation.
The U.S. Court of Appeals for the Fifth Circuit ruled the ban unconstitutional last month. Paxton will seek another decision on the week of January 18, this time before the court en banc, meaning every judge will be present instead of a small panel of three.
In their October 13 ruling, affirming justices James Dennis and Carl Stewart argued that the dismemberment ban created an undue burden on women seeking abortions because it forced providers to abort the child inside the uterus instead of on the way out of the womb.
“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.”
Justice Don Willett dissented, arguing that the ban allows for other forms of abortion just as effective and calling the court’s claim “that the abortion right is ‘absolute’ and ‘dominant over’ the state’s interests” a “permanent thumb (or anvil) on the scale.”
“Rhetoric must not befog reason. The majority uses gauzy, evasive language to minimize the reality of D&E and to maximize, but never quantify, the risks of various ‘fetal-demise’ techniques… The State need not prove that every alternative works every time for every woman. As the Supreme Court put it in Gonzales, a state need only show ‘the availability of… safe alternatives’ to live dismemberment. Texas has done exactly that,” Willett wrote.
“[SB 8] shutters no clinics who offer D&E abortions; it deters no women who seek them. The lone thing SB8 seeks to ban is a particular form of brutality: dismembering a living unborn child. And the record below—including Plaintiffs’ own admissions—makes clear that safe and effective alternatives to live-dismemberment abortion are not just available but plentiful.”
Willett ended his dissent by urging the en banc court to hear the case.
Paxton released a statement praising the Fifth Circuit for deciding to revisit the case.
“I thank the Fifth Circuit for agreeing to a thorough review of this case,” Paxton said. “Protecting the sanctity of life continues to be one of my top priorities, and I remain confident that Texas has lawful authority to protect unborn children from this abhorrent and barbaric procedure.”
When the Fifth Circuit found the ban unconstitutional last month, it upheld the ruling of the U.S. District Court for the Western District of Texas, whence Paxton appealed the case.
Abortion provider and self-described feminist advocacy group Whole Woman’s Health joined a number of surgeons and abortion physicians and providers as plaintiffs.
The ruling and later dissent are included in one document below.
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