NEW ORLEANS (AP) – A Texas law prohibiting an abortion method commonly used to end second-trimester pregnancies was upheld Wednesday by a federal appeals court in New Orleans.
The 2017 law in question has never been applied. It seeks to prohibit the use of forceps to remove a fetus from the uterus – what advocates of the law call a “dismemberment abortion” – without first using an injected drug or suction procedure to ensure that the fetus is dead.
Advocates for abortion rights argued that the law, known as SB8 in court records, effectively prohibits what is often the safest method of abortion for women in the second trimester of pregnancy, a procedure known medically as dilation and evacuation. . They also argued that fetuses cannot feel pain during the gestation period affected by the law, and that an alternative outlined by the state, the use of suction to remove a fetus, also results in dismemberment.
A three-judge panel of the US Court of Appeals for the Fifth Circuit blocked enforcement of the law last year. But Texas sought and the full court granted him a new hearing.
Most of the 14 appellate judges who heard arguments in January – three of the 17 active court judges were challenged – sided with Texas. The opinion, from Justices Jennifer Walker Elrod and Don Willett, said that “the record shows that clinicians can safely perform D & Es and comply with SB8 using methods that are already in widespread use.”
The result was attended by judges Priscilla Owen, Edith Jones, Jerry Smith, Catharina Haynes, James Ho, Kurt Engelhardt and Cory Wilson.
Judge James Dennis wrote a dissent on his behalf and with Justices Carl Stewart and James Graves. Judge Stephen Higginson, joined by Gregg Costa, wrote a separate dissent.
Dennis said that Texas law, “under the guise of regulation, makes it a crime to perform the most common and safest abortion procedure employed during the second trimester.”