Courts

U.S. Appeals Court Upholds Texas Ban On Common Abortion Method

Abortion advocates protested in the state Capitol in 2017 before the Lege passed the recently upheld D&E abortion ban.
Abortion advocates protested in the state Capitol in 2017 before the Lege passed the recently upheld D&E abortion ban. Photo by Blackbird Film Co./Flickr
The Fifth Circuit Court of Appeals dealt a blow to abortion advocates in Texas when it affirmed a ban on the most common method of abortion after 15 weeks of pregnancy in a ruling Wednesday night, overruling a previous decision from that same court’s judges just last year.

It’s the latest defeat for reproductive rights groups in Texas, coming mere days before Texas’ new controversial “heartbeat” bill is scheduled to go into effect on September 1, which attempts to ban abortions after a so-called fetal heartbeat is detected (usually around six-weeks of pregnancy) by opening up abortion providers and anyone who aids or abets someone seeking such an abortion to an unlimited onslaught of civil lawsuits. The law has been challenged in court by pro-abortion groups, but the lawsuit remains unresolved with less than two weeks until September begins.

In October, a panel of judges from the Fifth Circuit struck down the ban on the frequently used abortion method called dilation and evacuation, or D&E for short, that was passed into law by the Texas Legislature back in June 2017 but had been held up in other legal red tape. But in an unusual move, the full 17-member court eventually decided to throw out the panel’s decision and moved to have the case reheard in front of the full Fifth Circuit back in January, and ultimately ruled in favor of the ban Wednesday night.

After Wednesday’s ruling, using the most common method of abortion in second-trimester pregnancies (which make up around 11 percent of all abortions in the United States) is now punishable with up to two years in prison in the state of Texas.


Dr. Bhavik Kumar, an abortion provider at Planned Parenthood Center for Choice in Houston, said in a statement that Wednesday’s ruling was “deeply disturbing to me as a physician.”

“By allowing the state to ban the standard method of abortion at this stage of pregnancy, the court has allowed extremist politicians to interfere in private health care decisions that should stay between patients and their physicians,” he said.

Whole Woman’s Health President Amy Hagstrom Miller agreed. “This ban is about cutting off abortion access, and nothing else,” she wrote. “In no other area of medicine would politicians consider preventing doctors from using a standard procedure. It should never be a crime for doctors to use their best medical judgment and follow the most current science.

“In no other area of medicine would politicians consider preventing doctors from using a standard procedure. It should never be a crime for doctors to use their best medical judgment and follow the most current science.” — Amy Hagstrom Miller

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"Texans deserve the best care available, and this law prevents that,” Hagstrom added.” As the six-week ban is looming, it’s even more apparent that these abortion laws are about making abortion completely inaccessible.”


In an effort to slow or halt abortions in Texas before a fetus’ so-called “heartbeat” is detected (a misnomer given that medical experts describe what anti-abortion advocates call the heartbeat as simple electrical pulses from fetal tissue), SB 8 allows for any person — Texan or not — to sue any individual who either performed such an abortion or may have aided or convinced someone to get an abortion during that timeframe for up to $10,000 in damages. Any person sued under this law is liable to pay up to $10,000 in damages, can be sued by an infinite number of people, and cannot have their legal fees reimbursed even if they prevail in court.

Whole Woman’s Health, Planned Parenthood, the ACLU of Texas and the Center for Reproductive Rights are among the numerous abortion advocates that filed a lawsuit back in July attempting to block the Legislature’s latest abortion ban from going into effect on September 1. But with that deadline fast-approaching, it’s looking increasingly unlikely that the law’s enactment will be halted with each passing day.

In a statement to the Houston Press, Planned Parenthood Center for Choice President and CEO Melaney Linton said "Our lawsuit is ongoing, and we remain hopeful that the court will block this draconian law and protect Texans’ access to essential healthcare.”

“Regardless, we are doing everything we can to prepare in case the law does take effect on September 1,” she continued. “Our patients come first and we are ready to help them navigate this incredibly difficult situation — even though no one should ever have to ‘prepare’ for losing access to essential health care because of political attacks.”

Marc Hearron, Senior Legal Counsel at the Center for Reproductive Rights and the lead attorney on the case, told the Press in a statement that “Right now, we are doing everything we can in our power to prevent this law from taking effect before September 1. If this unconstitutional law takes effect, it will decimated abortion access in Texas. We will pursue every legal avenue we can to prevent that from happening.”

Linton explained that if the lawsuit to block the heartbeat bill fails, Planned Parenthood “will continue to provide expert, compassionate abortion care for patients who are within the new legal limit of around six weeks, which we sadly know will be only a fraction of the people who need care” considering that most women don’t even realize they’re pregnant before a fetal “heartbeat” can be detected.

“For the vast majority of people beyond the six-week mark, Planned Parenthood and our coalition partners are prepared to help connect patients with out-of-state care and resources to assist in that burdensome process,” Linton said.
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Schaefer Edwards is a staff writer at the Houston Press who covers local and regional news. A lifelong Texan and adopted Houstonian, he loves NBA basketball and devouring Tex-Mex while his cat watches in envy.
Contact: Schaefer Edwards