Texas Ban on Common 2nd-Trimester Abortion Method Upheld by Appeals Court

A pro-life activist holds a sign outside the U.S. Supreme Court during the 48th annual March for Life in Washington on Jan. 29, 2021. (Alex Wong/Getty Images)

A Texas law effectively banning an abortion procedure commonly employed during second-trimester pregnancies in the United States was upheld by the Fifth Circuit Court of Appeals on Aug. 18, reversing a ruling last year by a three-judge panel of the same court.

The 2017 law, which imposes civil and criminal penalties on physicians who perform dilation and evacuation abortions after 15 weeks of pregnancy without first ensuring that the unborn child doesn’t have a detectable fetal heartbeat, has never been enforced.

The dilation and evacuation (D&E) method accounts for the majority of second-trimester abortions in the United States. Eleven percent of abortions in the country take place after the first trimester, and national estimates suggest that the D&E method accounts for roughly 95 percent of these procedures, according to the Guttmacher Institute.

The full 17-member Fifth Circuit said on Aug. 18 (pdf) that a lower federal court erred when it permanently blocked the law after ruling that it imposes a substantial obstacle in the path of women who wish to have pre-viability abortions.

Physicians found to have violated the measure would face a prison term of up to two years.

Nine judges on the New Orleans-based appeals court joined in ruling in favor of the Texas statute, with five judges dissenting and three recused from the case.

The judges in the majority opinion said that viewing the law, known as Texas Senate Bill 8 in court records, “through a binary framework—that either D&Es can be done only by live dismemberment or else women cannot receive abortions in the second trimester—is to accept a false dichotomy.”

“Instead, the record shows that doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use,” the judges said.

Texas Senate Bill 8 centers on the idea that the state never repealed laws enacted before the 1973 Supreme Court decision in favor of the plaintiffs in Roe v. Wade—which in essence ruled abortion to be a constitutional right.

Texas Right to Life Director of Media and Communication Kimberlyn Schwartz said that the decision marks a “long-awaited” victory for Texans.

“Anyone can see the cruelty of dismemberment abortions, ripping a child’s body apart while her heart is still beating. We’re grateful the judges recognized this horror,” Schwartz said in a statement.

Elissa Graves, legal counsel for the conservative Christian nonprofit Alliance Defending Freedom, said in a statement that the law is “both human and constitutional.”

“Texas has the right to respect the life of unborn children,” she said.

Center for Reproductive Rights President and CEO Nancy Northup said in a statement that the group is considering all of its legal options regarding the decision.

“Texas has been hellbent on legislating abortion out of existence, and it is galling that a federal court would uphold a law that so clearly defies decades of Supreme Court precedent,” Northup said. “At a time when the health care needs of Texans are greater than ever, the state should be making abortion more accessible, not less. There is no question that today’s decision will harm those who already face the greatest barriers to health care.”

According to the Center for Reproductive Rights, courts have struck down similar D&E abortion bans in other states, including Alabama, Arkansas, Indiana, Kansas, Kentucky, Louisiana, and Oklahoma.

Reuters contributed to this report.