At federal appeals court, Texas asks to enforce its ban on a common abortion procedure

NEW ORLEANS –– The federal Fifth Circuit Court of Appeals heard arguments Monday morning about whether Texas should be able to ban doctors from performing the most common second-trimester abortion procedure, called dilation and evacuation.

In a nearly hourlong hearing, attorneys for Texas and lawyers for the Center for Reproductive Rights and Planned Parenthood argued in front of a panel of three judges.

At issue was Senate Bill 8, a law signed by Republican Gov. Greg Abbott in 2017 but blocked by a federal judge that would ban abortions in which a doctor uses surgical instruments to grasp and remove pieces of fetal tissue. The law would only allow the procedure to be done if the fetus is deceased.

Heather Gebelin Hacker, assistant solicitor general for the Texas Attorney General's Office, described the dilation and evacuation procedure as “barbaric,” saying with graphic details that fetuses’ limbs are torn apart.

“It’s illegal to kill an animal that way in Texas, we wouldn’t execute a murderer that way, and notably the abortion providers don’t tell women that that’s what the procedure entails,” Hacker said.

She said that there were other methods doctors could use, including potassium chloride injections, which she said had not been cited as the cause of any abortion complications in Texas in the last five years and that abortion providers were already using on their own accord. Hacker also told the judges that the law would not affect access to abortion in the state.

But Janet Crepps, senior counsel for the Center for Reproductive Rights, argued that the state’s proposed law was “invasive, medically unnecessary and poses a dangerous risk” to women. She said injections with potassium chloride using a three-to-four-inch spinal needle puts women at risks for infection and hospitalization.

“Just the idea the state thinks that’s what’s within its power is contrary to the whole idea that women have a right to autonomy, dignity,” Crepps said after the hearing.

The appeals case comes nearly a year after Judge Lee Yeakel said the provision imposed an "undue burden" on women seeking second-trimester abortions in Texas. The Center for Reproductive Rights and Planned Parenthood filed suit last summer on behalf of several women’s health providers in the state. Yeakel issued a temporary restraining order on enforcing the measure in August, a day before the ban's effective date.

Throughout the hearing the three judges asked questions around how to best interpret a Eleventh Circuit Court of Appeals ruling that blocked Alabama’s dilation and evacuation ban from going into effect; how the injections work; and who are the women likely to need these services.

Medical professionals deem the dilation and evacuation method the safest way to perform an abortion, and reproductive rights groups have said this ban would subject women to an unnecessary medical procedure.

Amy Hagstrom Miller, founder and CEO of Whole Woman's Health, said after the hearing that she was feeling good about their chances. She pointed out that the methods state attorneys cited as alternatives to the dilation and evacuation procedure were “absolutely not the standard of care.”

“I really lean on the fact that a [dilation and evacuation] ban hasn’t withstood these kind of proceedings to date,” Hagstrom Miller said. “I think the record is really strong that there is no added health benefits and that the state is overreaching.”

Abortion opponents call the procedure “dismemberment” abortions and argue it’s inhumane.

Emily Horne, senior legislative associate for Texas Right to Life, an anti-abortion group, said she was feeling hopeful that the court would rule that Texas could enforce the dilation and evacuation ban.

“It comes down to we’re really talking about a modest restriction on a very brutal abortion procedure while the child is alive,” Horne said.

A ruling is expected in the next few months.

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