Appeals Court Upholds A Texas Law That Bans A Common Abortion Procedure

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The 5th U.S. Circuit Court of Appeals in New Orleans has ruled that Texas may prohibit a common second-trimester abortion procedure.

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Jonathan Bachman/AP

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Texas legislators banned the procedure with a law that describes it as «dismemberment abortion.» Abortion rights supporters argued in court that one alternative provided in the law, using suction to remove a fetus, also results in dismemberment.

A three-judge panel of the 5th U.S. Circuit Court of Appeals blocked enforcement of the law last year. But Texas was granted a re-hearing by the full court, and a majority of the 14 appellate judges who heard arguments in January (three of the court’s 17 active judges were recused) sided with Texas on Wednesday. The opinion, by judges Jennifer Walker Elrod and Don Willett, said «the record shows that doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use.»

Concurring in the result were judges Priscilla Owen, Edith Jones, Jerry Smith, Catharina Haynes, James Ho, Kurt Engelhardt and Cory Wilson.

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Judge James Dennis wrote a dissent, joined by judges Carl Stewart and James Graves. A separate dissent was written by Judge Stephen Higginson, joined by Gregg Costa.

Dennis said the Texas law, «under the guise of regulation, makes it a felony to perform the most common and safe abortion procedure employed during the second trimester.»

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The Center for Reproductive Rights is analyzing the decision and considering all legal options, said its president and CEO, Nancy Northup.

«Texas has been hellbent on legislating abortion out of existence, and it is galling that a federal court would uphold a law that so clearly defies decades of Supreme Court precedent,» Northup said. «At a time when the health care needs of Texans are greater than ever, the state should be making abortion more accessible, not less. There is no question that today’s decision will harm those who already face the greatest barriers to health care.»

Texas Right to Life applauded the ruling.

«If the abortion industry appeals today’s decision, the Supreme Court must answer the case’s dynamic legal question: ‘Is a dismemberment abortion inhumane enough to warrant legal prohibition?'» the anti-abortion group’s statement said. «The evident answer to this targeted question directly undermines some of the Supreme Court’s central premises in their abortion jurisprudence, such as the misconception that pre-viability abortions are more ethical than those that occur after viability.»

«Texans celebrate today’s long-awaited victory,» Texas Right to Life Director of Media and Communication Kimberlyn Schwartz said in the release. «Anyone can see the cruelty of dismemberment abortions, ripping a child’s body apart while her heart is still beating. We’re grateful the judges recognized this horror.»

• reproductive rights
• abortion