The U.S. Fifth Circuit Court of Appeals on Wednesday overturned a panel ruling and upheld Texas Senate Bill 8 (SB8), which seeks to ban a specific type of method of dilation and evacuation (D&E) abortion.
In a plurality decision, circuit judges Jennifer Walker Elrod and Don Willett wrote that the United States Lower District Court for the Western District of Texas made numerous reversible legal and factual errors, applying the wrong test to assess SB8 and ignoring and misinterpreting Supreme Court precedents. .
In a somewhat unusual move, the appeals court went further by quashing the permanent injunction granted by the district court and making its own ruling stating that “the referral to the district court would be futile here because the case allows only one conclusion ”.
SB8, promulgated by the Governor of Texas Greg Abbott in May 2017, authorizes abortion performed only by dilation and aspiration or by “fetal death” caused without forceps followed by evacuation with forceps, but forbids doctors to use forceps to separate fetal tissue and thus end to the fetus by “living dismemberment”, except in a medical emergency. He then defines medical emergencies as “a life-threatening physical condition aggravated by, caused by or resulting from pregnancy which, as certified by a physician, puts the woman in danger of death or serious risk of death. substantial alteration of a major bodily function… ”
Six abortion clinics and five individual doctors (“complainants”) have filed a complaint arguing that SB8 places an undue burden on women seeking an abortion in the second trimester of pregnancy. In November 2017, Judge Lee Yeakel agreed with the plaintiffs and said that “the state’s legitimate interest in fetal life does not allow for an additional medical procedure to be imposed on standard D&E abortion – a procedure not motivated by medical necessity “. Believing that the state’s interest must give way to women’s rights in this context, Judge Yeakel concluded that SB8 “intervenes in the medical process of abortion before viability in an unduly constraining manner …” the law.
Before the appeal reached the full formation of the Fifth Circuit, a three-judge panel also blocked the application of SB8, arguing that the law amounted to a ban on all D&E abortions because the “living dismemberment” method “designated as such and prohibited by SB8, is the safest and most commonly used method for second trimester abortions. Thus, the Fifth Circuit panel ruled that SB8 imposes an undue burden on a woman’s right to obtain an abortion prior to fetal viability, in violation of the due process clause of the Fourteenth Amendment of the U.S. Constitution.
However, the state of Texas got a full court rehearing, and 14 of 17 appeals judges heard arguments in January, with three of the judges being disqualified from the case. The full court said on Wednesday that watching SB8 through a “binary frame” in which women have second trimester abortions only through the live D&E type of dismemberment or not at all is “accepting a false dichotomy.” . The court overturned the panel’s decision and found that there was sufficient evidence to indicate that “physicians can safely perform D&E and comply with SB8 using methods that are already widely used.”
Five judges disagreed with circuit judge James Dennis, particularly berating the plurality, stating:
Today, in a return to Sisyphus form… plurality erroneously declares the agreement of a single judge as precedent in order to impose a variation on the excessive burden standard that the Court has explicitly rejected… plurality in banc does not defer to district court though – reasoned and well-substantiated factual findings regarding the burdens and benefits associated with Texas law, instead substituting its own reading of the evidence to draw factual findings in the first place … In a last kind of entirely new error, the plurality of faults the district court for “botch[ing]”The analysis of the large fraction, which asks if the contested restriction is an undue burden for a large part of the women affected by it… But the plurality“ bungl[es]”The analysis itself, wrongly minimizing the impact of the law by wrongly including in its assessment a large number of women whose lives will not be totally subjected to what the plurality in the bench wrongly qualifies as” alternatives ” to the very common and safe procedure that Texas has banned: additional painful, invasive, expensive, and in some cases, experimental treatments, which carry considerably high risks to women’s health and well-being.
SB8 also included a provision requiring that embryonic and fetal tissue be buried or cremated – a provision that was not discussed in that opinion and previously rescinded by District Judge David Ezra in September 2018.
This decision of the court of appeal ways that offending doctors will face criminal charges and up to two years in prison.
As might be expected, the reaction to the decision has been mixed. CEO of the Center for Reproductive Rights, Nancy Northup, criticized the decision, saying that “Texas has struggled to legislate abortion, and it is infuriating that a federal court upholds a law that so clearly defies decades of Supreme Court precedent.” However, Texas Right to Life Media and Communications Director Kimberlyn Schwartz welcomed the decision and said she was grateful the judges recognized the horror and cruelty characteristic of mutilation abortions.
According to the Center for Reproductive Rights declared that D&E abortion bans have been overturned in Alabama, Indiana and Kansas, among others.