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Appeals court strikes down Texas' second-trimester dismemberment abortion ban

Appeals court strikes down Texas' second-trimester dismemberment abortion ban

Protesters rally before the start of a special session of the Legislature in Austin, Texas, July 1, 2013. | Reuters/Mike Stone

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has ruled against a Texas law that bans the dilation and evacuation abortion procedure, also known as dismemberment abortions.

In a 2-1 decision released Tuesday, the appeals panel majority upheld a lower court decision that blocked enforcement of the 2017 Texas law, known as Texas Senate Bill 8.

Circuit Judge James L. Dennis authored the majority opinion, arguing that the dismemberment abortion ban “unduly burdens a woman’s constitutionally-protected right to obtain a previability abortion.”

“SB8 sets a substantial obstacle in the path of women seeking abortions,” wrote Dennis, “it would inflict a special hardship on low-income women who are often unable to obtain an abortion until this point in their pregnancy.”

“On the other end of the scale are the State’s interests advanced by SB8, which are minimal at most. We thus conclude that SB8’s burdens substantially outweigh its benefits.”

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The majority also rejected arguments that the law advances the protection of potential life, stating that other second-trimester abortion procedures considered by abortionists to be less safe for women were still allowed.

“Sister Circuits that have addressed challenges to substantially similar fetal demise statutes have determined that the methods of fetal demise that the State proposes here are not safe, effective, or available,” Dennis added.

Dennis was joined by Circuit Judge Carl Stewart in the majority. Circuit Judge Don Willett rejected the majority and intends to file a dissent in the near future.

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The pro-life group Texas Right to Life released a statement Tuesday saying they found the decision “disappointing” and called for more “judges who follow the strictest interpretation of the Constitution.”

“Texas must continue the legal battle to force a federal circuit court split, pressuring the Supreme Court of the United States to evaluate the merits of the law,” they stated.

“Texas exercised the state interest in protecting preborn children from torturous dismemberment abortions, a method that kills preborn children by tearing them apart limb by limb. Thus, the Legislature banned the procedure in 2017.”

In June 2017, Texas Gov. Greg Abbott signed SB 8 into law. The measure prohibits dismemberment abortions “unless the dismemberment abortion is necessary in a medical emergency.”

“The term does not include an abortion that uses suction to dismember the body of an unborn child by sucking pieces of the unborn child into a collection container,” explained the law. “The term includes a dismemberment abortion that is used to cause the death of an unborn child and in which suction is subsequently used to extract pieces of the unborn child after the unborn child's death.”

Also called the Texas Unborn Child Protection from Dismemberment Abortion Act, a group of abortion providers sued, with U.S. District Judge Lee Yeakel striking down parts of the law in November 2017.

Yeakel issued the permanent injunction against the provisions of the law, labeling them “facially unconstitutional” and arguing that the law “intervenes in the medical process of abortion prior to viability in an unduly burdensome manner.”

“No just society should tolerate the tearing of living human beings to pieces,” said Texas Attorney General Ken Paxton in a statement at the time.

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