The U.S. Court of Appeals for the Fifth Circuit on Wednesday overturned a group decision and upheld Texas Senate Bill 8 (SB8), which seeks to ban a specific type of dilation and evacuation abortion method. (D&E).
In a plurality ruling, circuit judges Jennifer Walker Elrod and Don Willett wrote that the U.S. Lower District Court for the Western District of Texas made numerous reversible legal and factual errors, applying the incorrect test to evaluate SB8 and ignoring and misreading the precedents of the Supreme Court. .
In a somewhat uncharacteristic move, the appellate court went further, leaving the permanent provision granted by the district court and giving its own decision stating that “remaining in the district court would be useless here because the record only allows one conclusion “.
SB8, signed into law by Texas Gov. Greg Abbott in May 2017, allows abortion performed only by dilation and suction or by “fetal death” caused without tweezers followed by tweezers evacuation, but prohibits doctors from using tweezers to separate fetal tissue and therefore end the fetus by “live dismemberment,” except in cases of medical emergencies. It then defines medical emergencies as “a potentially fatal physical condition aggravated by, caused by, or derived from a pregnancy that, as certified by a physician, puts the woman at risk of death or a serious risk of substantial impairment.” an important bodily function … ”
Six abortion clinics and five individual doctors (“plaintiffs”) filed a lawsuit arguing that SB8 imposes an undue burden on women seeking to have an abortion in the second trimester of pregnancy. In November 2017, Judge Lee Yeakel agreed with the plaintiffs and said that “the state’s legitimate interest in fetal life does not allow the imposition of an additional medical procedure on standard abortion. D&E, a procedure not driven by medical necessity. ” Considering that the state’s interest should give way to women’s rights in this context, Judge Yeakel concluded that SB8 “intervenes in the medical process of abortion before viability in an unduly burdensome manner. .. “and declared SB8 facially unconstitutional and permanently banned the enforcement of the Act.
Before the appeal reached the full room of the Fifth Circuit, a three-judge court similarly blocked the application of SB8 on the grounds that the law was tantamount to banning all D&E abortions because the method of “ live dismemberment ”mentioned and banned by SB8, is the safest and most widely used method of second trimester abortions. Therefore, the Fifth Circuit panel stated that SB8 imposes an undue burden on a woman’s right to obtain an abortion before fetal viability in violation of the Trial clause due to the Fourteenth Amendment to the United States Constitution.
However, the state of Texas received a new hearing by the full court, and 14 of the 17 appellate judges heard arguments in January with three of the judges withdrawn from the case. The plenary said Wednesday that seeing SB8 through a “binary framework” in which women receive abortions in the second trimester only through the type of live dismemberment of D&E or not is “accepting a false dichotomy.” The court overturned the court’s decision and held that there was sufficient evidence to indicate that “physicians can perform D&E safely and comply with SB8 using methods that are already widely used.”
Five judges disagreed with Circuit Judge James Dennis, particularly mocking plurality, stating:
Today, in a return to the sissific form … plurality erroneously declares the concurrence of a single judge as a precedent in order to impose a variation of the rule of undue burden that the Court has explicitly rejected … plurality in bank does not fit the well of the district court -Resulted and well-supported facts about the burdens and benefits associated with Texas law, rather than substituting your own reading of the evidence for factual conclusions in first instance … the district court for “botch[ing]”The analysis of large fractions, which asks whether the contested restriction is an undue burden for a large part of the women affected by it … But the plurality” bungl[es]”The analysis itself, incorrectly minimizing the impact of the statute erroneously including in its assessment a large number of women whose lives will not be fully affected by SB8 … Today’s court decision will force, in the name of “medical ethics,” many women unnecessarily suffer what bank plurality unfairly characterizes as “alternatives” to the very common and safe procedure Texas has banned: painful, invasive, expensive, and in some cases additional treatments , experiments that pose significantly high risks to women ‘s health and well – being.
SB8 also included a provision requiring the remains of embryonic and fetal tissue to be buried or incinerated, a provision that was not discussed in this opinion and was previously overturned by District Judge David Ezra in September 2018.
This appeals court ruling means that doctors who violate rights will face criminal charges and up to two years in prison.
The reaction to the decision has been predictably mixed. Reproductive Rights Center CEO Nancy Northup criticized the decision, stating that “Texas has been determined to legislate abortion because of its existence, and it is frustrating for a federal court to uphold a law that so clearly defies decades of precedent. However, Texas Right to Life’s director of media and communications, Kimberlyn Schwartz, welcomed the verdict and was grateful that the judges recognized the horror and cruelty that characterize abortions. dismemberment.
According to The Center for Reproductive Rights, it was stated that bans on abortion in D&E have been lifted in Alabama, Indiana and Kansas, among others.