A federal judge in Austin issued a temporary restraining order last week blocking Texas from enforcing a new law that would in effect ban second-trimester abortions in the state.
“The state cannot pursue its interests in a way that denies a woman her constitutionally protected right to terminate a pregnancy before the fetus is viable,” District Judge Lee Yeakel wrote in a 17-page order suspending the law just hours before it was slated to take effect on September 1.
Texas quickly vowed that it would continue to “defend our state’s legal right to protect the basic human rights and dignity of the unborn,” a spokesperson for Attorney General Ken Paxton said in a statement.
At issue is an abortion method known as dilation and evacuation, or D&E, which is considered the safest and most effective method of termination during the second trimester of pregnancy. While Texas argues that it isn’t banning D&E per se, but rather the way the procedure is performed, doctors would have to completely change the procedure to comply with the new law.
According to Janet Crepps, an attorney with the Center for Reproductive Rights, the state is outlawing the most common, proven method in favor of alternatives that are “untested with unknown safety risks” and that in essence would “require doctors to experiment on women” in order to avoid possible jail time.
A full hearing to determine whether the bill should be permanently blocked is currently scheduled for September 14.
Seven other states have enacted such a ban, and courts have blocked the measure from taking effect in every state where it has been challenged.
D&E is generally used starting at 15 weeks of pregnancy. The procedure involves dilation of the cervix, then the extraction of the fetus and products of conception, typically with medical instruments, followed by vacuum suction. D&E is used in 95 percent of later-term procedures in the U.S., which make up a small percentage of all abortions — roughly 11 percent of abortions take place after the first trimester.
Still, D&E has come under fire from anti-abortion activists, who have undertaken a coordinated mission to ban the procedure, which they have dubbed “dismemberment abortion,” because the process causes disarticulation when the fetus hits the cervix.
In court filings, Paxton used inflammatory language to describe D&E as “the brutal, gruesome, and inhumane practice of using forceps to dismember, piece-by-piece, living unborn children.” Paxton noted that such a practice would violate the constitutional protection against cruel and unusual punishment if it were a method of execution.
His description was purposeful in that it mimics language used to describe so-called partial-birth abortion, which is illegal except when a woman’s life is in danger. Like “dismemberment abortion,” “partial-birth abortion” is not a medical term. Known as dilation and extraction, or D&X, it involves the partial removal of an intact fetus from the uterus before collapsing its skull to complete the procedure.
In 2007, the U.S. Supreme Court upheld a federal ban of D&X, explaining that doing so would not place an undue burden on women seeking to exercise their right to terminate a pre-viable pregnancy in part because the D&E procedure would still be available for those in need of a later-term abortion. The current wave of D&E bans directly challenges this ruling.
And that’s key for reproductive rights advocates who say the D&E bans are unconstitutional. A woman generally has the right to abortion before the fetus is viable outside the womb, accepted as occurring between 22 and 24 weeks. Given that Texas and 20 other states have banned abortion at 20 weeks, outlawing D&E would essentially ban second-trimester abortion, blocking a woman’s ability to exercise her constitutional right.
Texas has defended its statute by arguing that it is only banning the D&E procedure if it is performed while the fetus is alive — an action that under the new law could saddle a doctor with a felony conviction. A doctor could still perform an evacuation abortion, but only after having caused “fetal demise,” the state says.
The state argues that this can be done easily with several methods — including injecting the fetus (either through the woman’s cervix or abdomen) with a fatal drug (either potassium chloride or digoxin), or transecting the umbilical cord before removing the fetus. Texas’s statute is “a measured piece of legislation,” Assistant Attorney General Darren McCarty argued before Judge Yeakel during a hearing last week. “Unborn children” are owed this “dignity,” he said. “That’s all [the law] does.”
However, lawyers representing six abortion providers — including Planned Parenthood and Whole Woman’s Health — and four individual abortion doctors, say it isn’t that simple.
Potassium chloride injections require specialized training and can prove fatal to a woman if administered incorrectly. Digoxin has a failure rate as high as 13 percent — meaning that a woman might need multiple shots in order to induce demise, and there is no research to confirm whether that is safe or effective, Crepps argued at the hearing. Transection of the umbilical cord, which can cause perforations of the uterus and damage to the cervix, is at least equally as risky. While some doctors have used these methods, she said, they do so on a case-by-case basis, evaluating what is in the best medical interest of the individual woman. For some women, these methods are not compatible with existing health issues.
Aside from the standard D&E, the only other proven method for ending a second-trimester pregnancy is through induced labor — which presents a host of risks, can take days to complete, and requires hospitalization. Because many Texas hospitals will not perform elective abortions, most women would not be able to avail themselves of this option even if they wanted to.
The alternatives to D&E proposed by the state would also require additional doctors’ visits. A digoxin shot can take up to 24 hours to work, if it works at all, and Texas already has a mandatory 24-hour waiting period between the time a woman consents to an abortion and when she is able to receive it. In other words, the new law would add at least one additional trip to the doctor before the procedure could be completed — certainly a hardship for women with limited means and transportation challenges in a state almost twice the size of Germany.
Indeed, access to safe, legal abortion care in Texas has dwindled as the state has loaded on restrictions to abortion access that have seen a number of providers close their doors — including a requirement that all abortions after 16 weeks be conducted in an ambulatory surgical center. Under the current rules, there are just two providers left in West Texas, both located in El Paso, and just one in the Rio Grande Valley, in the border city of McAllen. The remaining providers — and the only surgical centers — are in Houston and clustered along the Interstate 35 corridor, running from San Antonio through Austin and up to Dallas and Fort Worth, meaning large swaths of the state’s population are left without ready access to care.
And restricted access is in part what makes it more likely that a woman would need a second-trimester abortion. Research shows a higher likelihood among women who don’t recognize they are pregnant early on, need financial assistance to obtain care, live farther than 25 miles from a provider, are young, or are people of color. Moreover, many fetal abnormalities — including those incompatible with life outside the womb — are more readily detected around the second trimester.
In 2014, a year after Texas lawmakers passed sweeping abortion restrictions that led to the closure of dozens of clinics, the number of second-trimester abortions jumped 27 percent.
Judge Yeakel had pointed questions for both sides during last week’s hearing — including whether there was any difference between the Texas statute and those that have been blocked in five other states (Alabama, Arkansas, Louisiana, Kansas, and Oklahoma). No, was the answer from both the providers’ and the state’s lawyers.
Yeakel also wanted to know what evidence the state legislature had before it “in determining the medical reason to pass a measure such as this.”
Although the state’s lawyer tried to talk around the question, the real answer was: none.
The measure was initially proposed as a standalone bill, one of more than 50 abortion-related measures filed during the 2017 legislative session, and was subject to a marathon hearing in February in the Senate Health and Human Services Committee, where emotions ran high and tempers flared — occasionally out of control.
The measure’s author, Sen. Charles Perry of Lubbock, bristled when Joe Pojman, the veteran head of statewide anti-abortion group Texas Alliance for Life, said he could not support the bill because it was almost certainly unconstitutional. Perry shot back that his measure wouldn’t ban abortion at all. “On its face it doesn’t, but in practice it will,” Pojman said. “It’s a de facto ban” on second-trimester abortion.
Things got nasty when Margaret Hennessy, then a legislative intern for NARAL Pro-Choice Texas, delivered impassioned remarks about why the bill was bad for women. It was meant to further “stigmatize abortion care,” she said, and would make women undergo unnecessary and invasive medical procedures while denying them “evidence-based, compassionate care that results in the fewest complications.” A vote for the bill, she said, was not only a vote against women’s health, but also one against “women’s economic empowerment and constitutional rights.”
While she was in the middle of her final statement — that lawmakers should stop using women as their political puppets — her allotted speaking time expired, and the committee’s chairperson, Sen. Charles Schwertner, demanded she stop speaking. When she continued to finish her sentence, Schwertner quickly lost it, banging his gavel on the glass-topped table so hard that the glass shattered. He then fixed her with a dark stare: “Thank you; your time is done,” he said.
Hennessy, who is working toward a master’s degree at the University of Texas’s Lyndon B. Johnson School of Public Affairs, was dumbfounded. She’d timed her testimony at just under two minutes. “I wasn’t purposely trying to go over. I respect the process,” she recalled recently. She doesn’t know exactly what set Schwertner off — aside from the fact that she disagreed with him. “He was rattled and responded like a child.” But it was “that horrible glare” that shocked her the most. She said it was emblematic of how destructive the fight over women’s reproductive health care has become in Texas: The dialogue has become too ideological, too hostile to opposing views — and to medical professionals — and it is women’s lives and well-being that are left in the wake, she said. “It’s really sad.”
While the Senate handily passed the bill, it died in the House before it was even considered in committee — meaning no actual debate on the matter ever happened in that chamber. Instead, the measure was amended to an omnibus anti-abortion bill carried by Schwertner, which passed through both chambers with vocal opposition but minimal debate. Gov. Greg Abbott signed it into law days later.
Ultimately, the state of Texas insists that it is seeking a “marginal, moderate remedy” to render second-trimester abortion more humane, Assistant Attorney General McCarty told Yeakel. It is not seeking to experiment on women; where Crepps noted there were no studies indicating that multiple injections of digoxin would be safe, McCarty countered that neither were there studies indicating the opposite. And there’s simply no evidence that a single woman would be unable to obtain a second-trimester abortion if the law was upheld, he said.
“Under Roe v. Wade, the Supreme Court used the term ‘right’ — a woman has a right to abortion,” Yeakel pointed out.
“Nothing about [the law] denies that right,” McCarty insisted.
“What do you think the Supreme Court meant when it said this is a right?” Yeakel later followed up. “That is a very, very strong term, and this court is very concerned about it.”