Texas successfully passed a law in 2017 that banned the practice of fetal dismemberment, but swift legal challenges have kept the law suspended until a definitive court ruling drops the final gavel.
After a panel of three judges at the U.S. Fifth Circuit Court of Appeals ruled against the law in October, the court decided to rehear the case en banc. Yesterday, the judges convened in a video conference to hear arguments from both sides of the case: Whole Woman’s Health v. Ken Paxton and the State of Texas.
Dismemberment abortions, commonly called dilation and evacuation or D&E abortions, involve tearing the fetal tissue into pieces as it leaves the womb.
The law, Senate Bill (SB) 8, only outlaws the use of dismemberment to achieve the death of the fetus. After achieving fetal demise — for which the state proposed a number of alternatives, including injections of chemicals like digoxin and cutting the umbilical cord — dismemberment of the dead tissue is legal.
“It’s illegal to kill an animal in Texas by ripping it limb from limb. SB 8 extends that same protection and dignity to pain-capable unborn children on the cusp of viability,” said Kyle Hawkins, solicitor general for Texas through the end of the month.
“SB 8 regulates only the moment of fetal demise. It simply requires those who commit abortions to kill the unborn child in a more humane way before tearing her arms and legs off.”
Previously, the Fifth Circuit’s three-judge panel ruled that the law placed an undue burden on women seeking abortions by requiring providers to kill the child inside the womb before removing it, which could require a second trip to the clinic. The plaintiff, Whole Woman’s Health, made a similar case yesterday.
“The district court already found that SB 8’s mandate to ensure fetal demise before every D&E imposes such severe burdens on abortion access that regardless of whether the law’s burdens are considered independently or weighed relative to its benefits, SB 8 poses substantial obstacles to abortion,” the plaintiffs argued.
“Because digoxin causes demise slowly over a 24-hour period, patients must make an additional trip to the clinic the day before their procedure to receive the injection. The district court found that this delay alone was a substantial obstacle. The record clearly shows that no providers administer digoxin on the same day as the D&E procedure.”
Under questioning, Whole Woman’s Health counsel Molly Duane failed to satisfy the judge’s requests to show what kind of impact the law’s enforcement would have on abortion access.
Judge Don Willett, who dissented from the Fifth Circuit’s original ruling against the law, pressed Duane to show how many abortion clinics would have to shut down if Texas were to enforce SB 8. The long, tense colloquy ended with no clear answer.
The effectiveness of digoxin became one of the most contested items in the case, with Whole Woman’s Health calling the drug experimental and invasive while Texas defended its use and noted other alternatives alongside it.
“Every expert who testified at trial confirmed that digoxin fails unpredictably in 5-10 percent of cases, and in those cases the physician must complete the procedure without demise to protect the patient’s safety,” Duane said.
“The record also clearly shows that digoxin is not used in Texas or anywhere in the country before 18 weeks and that in Texas, the vast majority of procedures before 18 weeks are done in one day without overnight dilation.”
Hawkins noted that Whole Woman’s Health and other abortion clinics formerly called digoxin safe in their own literature but abruptly changed course “on the eve of litigation.”
“We’ve included in the record here the consent forms that the providers themselves give to their patients. These are consent forms asking the patients to consent to the use of digoxin to cause fetal demise prior to the D&E abortion. These consent forms say—and I’ll just quote from one—that digoxin makes the abortion process easier and safer,” Hawkins pointed out.
“So the abortion providers have been telling their patients that digoxin makes the abortion process easier and safer… Yet somehow the plaintiffs would have the court believe that when it comes to using digoxin to comply with SB 8, suddenly the procedure becomes risky and experimental.”
Later, the court would press Duane on a study included in the plaintiff’s own brief calling digoxin “safe and effective for inducing fetal death prior to second trimester surgical abortion.” Duane called such use of the chemical rare.
“Can you explain why many plaintiffs have and continue to use these methods even though SB 8 is not the law? I mean, in other words, why are plaintiffs using these methods voluntarily if they’re medically unnecessary and have no benefit?” asked one judge.
“Your Honor, the record clearly demonstrates that a minority of physicians in Texas, as around the country, use digoxin because they think it is appropriate for their patients at certain later gestation stages… Digoxin is never used below 18 weeks,” Duane answered.
Discussion also ensued over whether or not the injection could be called an “additional” procedure, as the three-judge panel of the Fifth Circuit had previously ruled.
Under pressure from the judges, Hawkins admitted that the state has no clear answer to how long women seeking abortions would have to wait between receiving a digoxin injection to kill the fetus and having the fetal tissue removed. He argued that the Supreme Court has upheld similar requirements such as 24-hour waiting periods or mandatory sonograms.
Whole Woman’s Health further argued that banning the use of D&E to achieve fetal demise could put abortion physicians in legal jeopardy if the alternatives do not work. Duane claimed chemical injections like digoxin may fail to kill the fetus, forcing the abortion physician to kill it by dismemberment and break the law.
Whole Woman’s Health has traveled through the Fifth Circuit before on the way to the Supreme Court. The landmark 2016 case Whole Woman’s Health v. Hellerstedt began when Texas passed a law holding abortion clinics and physicians to certain higher medical standards and a group of providers sued.
The Fifth Circuit’s previous ruling against SB 8, now called into question, deterred at least one member of the Lubbock City Council from voting for an ordinance that would have banned abortion in the town.
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