The 5th Circuit Court of Appeals upheld the law yesterday, reversing a previous panel decision.
“Dismemberment [dilation and evacuation abortions] are self-evidently gruesome,” the majority opinion reads.
“It has long been illegal to kill capital prisoners by dismemberment… It is also illegal to dismember living animals. The State urges that [the law] would simply extend the same protection to fetuses.”
The complex case began when the Texas legislature passed Senate Bill (SB) 8 in the 2017 session, banning dismemberment abortions and partial-birth abortions. Specifically, the law prohibits any abortion method that causes an unborn child’s death by dismemberment. Abortion procedures that achieve fetal demise and then evacuate the fetus by dismemberment are legal under Senate Bill 8. In effect, the law requires abortion providers to abort the child in the womb before removal.
A number of Texas abortion physicians and clinics sued, including Whole Woman’s Health and Planned Parenthood of Greater Texas. The Fifth Circuit initially sided with them, ruling that the law forced abortion patients to undergo the “invasive” and “extra, otherwise unnecessary procedure” of achieving fetal death in the womb before evacuation. This requirement, the court ruled, could create multiple trips to the abortion clinic on separate days.
After Texas Attorney General Ken Paxton appealed, the court decided to hear the case en banc, convening in a video conference for oral arguments in January. There, the Texas team argued that alternatives to dismemberment exist that are safe for the mother, namely the use of chemicals like digoxin to end the child’s life before removal. Plaintiffs called digoxin experimental and burdensome since it “causes demise slowly over a 24-hour period,” resulting in additional trips for the patient.
The court was unconvinced. In an opinion filed yesterday, the majority found that SB 8 complies with the undue burden standard of Planned Parenthood v. Casey and that alternative second-trimester abortion methods are just as safe.
One factor that persuaded the majority was that consent forms at a number of abortion clinics — including some that sued — call digoxin safe.
“The district court found that digoxin use before 18 weeks would be experimental. Many of the district court’s digoxin findings are contradicted by the plaintiffs’ own evidence and practices,” the opinion reads.
“Plaintiff Planned Parenthood of Greater Texas’s consent form lists some of the ‘risks and side effects’ of digoxin (like extramural delivery and pain), then tells patients that ‘there are no published reports of serious problems from using digoxin before abortion.’ The form also assures patients that ‘[s]ome clinicians also believe that using digoxin makes it easier to do the abortion. Studies have shown that it is safe to use digoxin for this purpose.’”
The court’s interpretation of what constitutes an undue burden is intertwined with case law like Planned Parenthood v. Casey and even mathematical determinations of how many women are affected by SB 8. In the end, the majority decided that plaintiffs did not show how SB 8 would meet this standard.
“The safety, efficacy, and availability of suction to achieve fetal death during abortions in weeks 15 and 16 combined with the safety, efficacy, and availability of digoxin to do the same in weeks 18–22 mean that the plaintiffs have utterly failed to carry their heavy burden of showing that SB8 imposes an undue burden on a large fraction of women in the relevant circumstances,” the majority wrote.
Five of the 16 involved judges dissented: Judges James Dennis, Carl Stewart, James Graves, Stephen Higginson, and Gregg Costa. Dennis, Stewart, and Graves accused the majority of misinterpreting Casey, which established the undue burden standard. Their dissent frames yesterday’s decision as one of several abortion-related 5th Circuit rulings that the Supreme Court opposes.
“Today, in a Sisyphean return to form, our court upholds a Texas law that, under the guise of regulation, makes it a felony to perform the most common and safe abortion procedure employed during the second trimester,” the three judges wrote, primarily referencing June Medical v. Russo — one case in which the 5th Circuit and the Supreme Court were at odds.
Additionally, the dissenters echoed the abortion providers’ claims that alternative demise methods like digoxin and suction are unnecessary additional procedures.
“The court’s decision today will, in the name of ‘medical ethics,’ force many women to unnecessarily undergo what the en banc plurality wrongfully characterizes as ‘alternatives’ to the very common and safe procedure that Texas has banned — painful, invasive, expensive, and in some cases experimental additional treatments that carry with them significantly elevated risks to the women’ health and well-being,” the dissent reads.
“Further burdening abortion access, many abortion providers will likely decline to perform later-term abortions rather than face the dilemma today’s ruling foists upon them: become a felon or do a risky procedure that is contrary to the doctor’s medical judgment regarding the patient’s best interests.”
Two judges also filed opinions to concur with the majority: Chief Justice Priscilla Owen and Judge James Ho. While much of the majority opinion dealt with abortion case law, Ho’s dissent meditated at length on medical ethics. He compared the opposition to SB 8 to the “Semmelweiss reflex” — a name for “the knee-jerk tendency to reject new evidence because it contradicts established norms,” given in honor of 19th-century doctor Ignac Semmelweiss, whose pioneering use of handwashing was ridiculed by his established medical peers.
“Indeed, if states must avoid unnecessary pain to convicted murderers on death row as a matter of constitutional mandate, then surely states may avoid unnecessary pain to innocent unborn babies as a matter of constitutional discretion,” Ho wrote.
“Someday, scientists may look back on today’s abortion debates as shocking and barbaric — just as we look back in disbelief at those who ridiculed and ostracized proponents of handwashing and sterilizing surgical instruments to prevent disease and infection.”
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