A US federal appeals court on Wednesday upheld a Texas law restricting a second-trimester abortion procedure, overturning a lower court’s decision that had blocked the measure from going into effect.
Wednesday’s decision amounts to the first time that a US federal court has upheld a restriction on the procedure known as dilation and evacuation, as other states’ similar bans have been blocked or aren’t fully enforced, according to the Center for Reproductive Rights, which deemed the ruling a major blow to abortion access for women in the state.
The ruling comes amid a slew of legal fights in Republican-led states in the wake of the Supreme Court’s growing conservative tilt and the hopes of many anti-abortion-rights activists that the court could curtail abortion rights nationwide.
In a split decision Wednesday, the 5th US Circuit Court of Appeals found the Texas law to be constitutional and that the lower court’s opinion that prevented it from taking effect “rested on bad law, bad facts, and bad math.”
However, the Guttmacher Institute, which advocates for reproductive rights, said the dilation and evacuation procedure is widely used, and the American College of Obstetricians and Gynecologists has referred to it as “evidence-based and medically preferred because it results in the fewest complications for women compared to alternative procedures.”
A group of abortion clinics and individual doctors had challenged the Texas law in 2017.
The district court that year found that the Texas measure amounted to a ban on all dilation and evacuation abortions and imposed an undue burden on a large portion of Texas women.
In its appeal, Texas argued that the law did not impose a ban on second-trimester abortions, nor did it place an undue burden on women because other safe and more humane alternative methods exist.
A three-judge 5th Circuit panel in October affirmed the district court’s ruling, but the full appeals court vacated the decision and voted to reconsider the case.
On Wednesday, the appeals court agreed with Texas, saying the district court had “incorrectly” determined that the Texas law amounted to a ban on D&E abortions and that “doctors can safely perform D&Es and comply” with the Texas law by “using methods that are already in widespread use.”
Seven judges on the appeals court reached Wednesday’s decision, while five dissented. The chief judge and another circuit judge concurred in the majority’s judgment only. Three judges were recused.
The court’s decision will “force many women to unnecessarily undergo what the en banc plurality wrongfully characterizes as ‘alternatives’ to the very common and safe procedure that Texas has banned—painful, invasive, expensive, and in some cases experimental additional treatments that carry with them significantly elevated risks to the women’s health and well-being,” Judge James Dennis wrote in his dissent.
“This ban is about cutting off abortion access, and nothing else,” Amy Hagstrom Miller, the president of Whole Woman’s Health, a plaintiff in the case, said in a statement. “In no other area of medicine would politicians consider preventing doctors from using a standard procedure.”
The plaintiffs were represented by the Center for Reproductive Rights, among others, whose president, Nancy Northup, said they are “analyzing this decision and will consider all of our legal options.”
The decision comes ahead of Texas’ so-called “heartbeat ban,” which is set to take effect next month. The law would bar most abortions at the onset of a fetal heartbeat, which can occur as early as six weeks into pregnancy and before many people know they are pregnant, and would allow citizens to sue individuals thought to have assisted in violating the law.
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