Benefits, burdens of Texas abortion procedure ban debated in 5-day trial

In a five-day trial that concluded Wednesday, lawyers for the state defended part of a Texas law that bans the most common second-trimester abortion procedure unless the fetus is deceased.

Abortion rights groups sued the state in July, arguing the provision restricting the dilation and evacuation procedure imposes an undue burden on Texas women seeking second-trimester abortions. Medical professionals deem the procedure the safest way to terminate a second-trimester pregnancy. 

But the state argued in court the method is inhumane and that it's reasonable to require fetal demise before the procedure is performed.

"The state has legitimate interest ... in protecting the health of a woman and life of a fetus that may become a child," said Darren McCarty, a lawyer for the state, in closing arguments. The provision at issue, he said, "regulates the moment of death, the moment of fetal termination, and nothing more. Whether ... the lethal act is going to be, for instance, grabbing the leg and pulling it off the fetus, or whether instead the lethal act is going to be a single injection or perhaps just a snip of the umbilical cord."

The trial centered on part of Senate Bill 8, a state law passed earlier this year that bans dilation and evacuation abortions unless the fetus is deceased. The ban had an effective date of Sept. 1. but Federal District Judge Lee Yeakel blocked its implementation with a temporary restraining order in August – a month after a lawsuit was filed by the Center for Reproductive Rights and Planned Parenthood on behalf of several women’s health providers in the state. Whole Woman's Health is the lead plaintiff.

During the dilation and evacuation procedure, doctors use surgical instruments to grasp and remove pieces of fetal tissue — a process proponents of SB 8 have called “dismemberment abortion." Doctors would face criminal charges for violating the ban; the only exception would be in cases of medical emergency.

Yeakel did not say when a ruling would come, but a temporary restraining order on enforcing the ban expires Nov. 22. The decision is likely to be appealed to the U.S. 5th Circuit Court of Appeals, an outcome Yeakel alluded to several times during trial. 

In a statement Wednesday, Attorney General Ken Paxton called dilation and evacuation a "ghastly procedure that involves an abortionist tearing a fully formed child apart limb by limb until its death." 

“I am hopeful the district court will find that Texas has an interest in protecting and fostering respect for human life, including unborn life, and that it will uphold the state’s lawful authority to protect the life and dignity of unborn children from barbaric dismemberment abortions,” he said. 

During the trial, the plaintiffs called to the stand a handful of witnesses — including a sociology professor and doctors who have provided abortions — who said requiring fetal demise would add medical risks or logistical hurdles without any benefit to the woman. Three methods for causing fetal demise were discussed at trial, but all were dismissed by the plaintiffs as being untested, unrealistic or unreliable.

One of them, a drug called digoxin, is currently used in abortion procedures for fetuses past a certain gestational age. Dr. Mark Nichols, an Oregon-based doctor who has worked with a local Planned Parenthood affiliate, said using it earlier in a pregnancy was "uncharted territory."

Besides adding health risks, requiring fetal demise could "delay or prevent" women from being able to access the procedure, said Sheila Katz, a sociology professor at the University of Houston. Because it could make an additional trip to the clinic necessary, abortion rights advocates say the demise requirement would add to a thicket of regulatory hurdles already faced by low-income women in the state.

"Their lives are so complicated and so fragile that an additional trip that's out of town, that might be overnight — they may lose their job, they may go hungry, they may lose their apartment because they can't afford their rent that month," Katz said. "These are all areas that women talk about when they have to meet unexpected expenses."

But lawyers for the state used cross-examinations and their own witnesses to assert requiring fetal demise was feasible and did not amount to experimentation. There are "multiple avenues" through which to stop the fetus' heart, said Dr. David Berry, a specialist in maternal-fetal medicine who has used potassium chloride to cause demise. Berry suggested some of the problems identified by the plaintiffs — including an increased risk of infection — were being inflated and are not barriers. 

Dr. Farr Curlin, a physician and medical ethics professor at Duke University, said on the stand that one of the plaintiffs’ claims — that methods to cause fetal demise constituted experimentation when done earlier in the second trimester — "directly misconstrues what it means to do an experiment." He said it's common in medicine to extend use of a practice from a population where "it's been more fully studied into a population where you have good scientific rationale to believe the effects are the same." 

Referencing the medical profession's "do no harm" principle, Curlin added, "SB 8 seems to me to align with and help to preserve that commitment, while still giving physicians discretion as to how they're going to carry out the procedures in a way that is compliant with the law."

Lawyers for the state echoed the arguments made by lawmakers who pushed for the ban — calling the procedure "brutal" and "inhumane" and introducing witnesses to hammer the point. 

Dr. Anthony Levatino, an OB-GYN and the defense's first witness, told an emotional story about how his daughter's death about 30 years ago gave him a new perspective on performing abortions. In a procedure shortly after her death, he said, "I really, truly looked at that pile of body parts on the side of the table."

"I didn't see [the patient's] wonderful right to choose; I didn't see what a great doctor I was helping her with her problem; and I didn't even see the $800 cash I'd just made in 15 minutes. All I could see was somebody's son or daughter," Levatino said. He stopped performing abortions shortly thereafter. 

The defense lawyers repeatedly brandished models of forceps used in the dilation and evacuation procedure or placed them on the witness stand. At one point during closing arguments, they projected grisly photos of "dismembered" limbs onto a large screen in the courtroom. 

Amy Hagstrom Miller, CEO and founder of Whole Woman’s Health, said in a statement Thursday: “The state tried to make a case that the restrictions they put forward are no big deal for women and providers to comply with; but, the state misses the point completely. These restrictions have no medical basis nor added health benefit whatsoever, and are yet another attempt to politically interfere with our healthcare decisions." She said the organization is "prepared to bring this challenge all the way to the Supreme Court, if necessary."

Paxton and state Rep. Stephanie Klick, R-Fort Worth, who added the provision restricting dilation and evacuation abortions onto SB 8, sat in on portions of the trial.

The lawsuit is the latest in a slew of regulatory and legal challenges to abortion access in the state, including a case that made its way to the U.S. Supreme Court in 2016.

Disclosure: Planned Parenthood and the University of Houston have been financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.