Appeals court upholds Texas law prohibiting 'live dismemberment' abortions

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A federal appeals court on Wednesday upheld a Texas law that prohibits a kind of dilation-and-evacuation abortion known as ‘live dismemberment’.

Dilation-and-evacuation abortions are most commonly performed in the second trimester of pregnancy. The ‘live dismemberment’ procedure banned by the law uses forceps to separate and thereby kill the unborn baby before removing its body from the womb. The Texas legislature has declared the procedure "brutal and inhumane."

The Texas law at issue— SB8— does not prohibit second trimester abortions. Rather, it adds a requirement prohibiting a doctor from using forceps to dismember the fetus while he or she is still alive. The law still permits dismemberment abortions that use suction.  

Helen Osman, communications consultant for the Texas Catholic Conference, said Catholics can view this ruling as the state of Texas demonstrating “a greater respect for human life in an environment in which we have not yet been able to eliminate abortion.”

“Our priority next step is continuing to advocate for the elimination of abortion,” she said in an email to CNA, noting that the US Supreme Court is set to consider a case involving Mississippi’s 15-week abortion ban, a case that many pro-life advocates say could lead to the overturning of Roe v. Wade.

Osman urged Catholics to contribute to a culture of life by supporting pregnancy centers and abortion alternatives, and to pray for an end to abortion and the conversion of those who support it. 

In November 2017, a federal district court temporarily blocked the Texas law, saying it was unconstitutional because it placed an "undue burden" on a woman's "right to an abortion." Courts have blocked similar laws in Alabama, Kansas, Louisiana, and Oklahoma.

In October 2020, a three-judge panel of the appeals court upheld that ruling, issuing a permanent injunction. The 2-1 majority said requiring women to undergo more costly and less common alternatives for second-trimester abortion procedures would infringe upon a woman's right to choose abortion. 

Abortion providers who were party to the case had argued that requiring other methods of “fetal demise” rather than dismemberment with forceps pose health risks for the mother. 

Texas appealed the 2020 decision, sending the case before the full 17-judge US Court of Appeals for the Fifth Circuit. The full court, in its Aug. 18 ruling, found that the district court had “committed numerous, reversible legal and factual errors.”

The appeals court found that the state had asserted several reasons why the law ought to be passed, including a state interest in “respect for fetal life,” “benefits to patients both physically and psychologically,” and “medical and societal ethics.” The appeals court found that the district court had “disregarded” all of those interests in its ruling, contravening Supreme Court precedent. 

The court ruled that the requirements set forth in the law do not constitute a “substantial burden” to women seeking abortions. 

“[The law] falls comfortably within the orbit of [Supreme Court precedent] as a regulation that respects the important state and societal interests involved in proscribing a brutal procedure, yet does not pose a substantial obstacle to women seeking abortions in the relevant circumstances,” the court wrote. 

“Dismemberment D&Es are self-evidently gruesome. 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 court added that “doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use.”

Texas already bars most abortions after 22 weeks. 

Texas Alliance for Life, another pro-life group, called the ruling a “stunning rebuke of abortion providers in Texas.”

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“While the law does not ban any abortions, it does prevent the dismemberment of the unborn child if the child is alive,” said Dr. Joe Pojman, Texas Alliance for Life's executive director.

"While the goal of the pro-life movement remains the complete protection of all unborn babies from abortion, the terrible Supreme Court precedent under Roe v. Wade prevents this...Our hope is that the Court will modify or reverse Roe and allow states to ban abortion when it takes up the Dobbs case later this year.”

The Alliance Defending Freedom, a Christian legal group, praised the ruling Wednesday. 

“[The Texas law] prohibits the use of this grisly and unnecessary method before the death of the unborn child. The law is both humane and constitutional,” the group wrote. 

“As the 5th Circuit rightly found, the abortionists who filed this lawsuit ‘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.”

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