The morning after President Joe Biden was inaugurated, the 5th U.S. Circuit Court of Appeals convened to consider whether Texas should be allowed to ban the safest and most common method of abortion used later in pregnancy. If the court agrees with Texas, it would be endorsing a previability abortion ban in direct conflict with decades of precedent.
At issue is the dilation and evacuation method of abortion, known as D&E, which is considered the safest and most effective method of termination during the second trimester of pregnancy. The procedure involves dilation of the cervix, then the removal of the fetus and products of conception, typically with medical instruments, followed by vacuum suction. D&E is used in nearly all later-term procedures in the U.S., which account for a small percentage of all abortions: In 2016, roughly 5.4 percent of abortions occurred after 16 weeks.
Nonetheless, D&E has come under fire from anti-abortion activists and lawmakers who have dubbed it “dismemberment abortion” (a term that has no basis in medicine) because the process causes disarticulation when the fetus hits the cervix. In order to provide more “humane” treatment to a previable fetus, Texas decided to ban D&E and make it a criminal offense to provide the procedure unless a doctor can first cause fetal demise.
The problem is that there is no meaningful way to ensure fetal death before an abortion is performed, and the methods to do so can be risky. In other words, advocates for reproductive rights say, Texas is seeking to ban a universally medically accepted procedure in favor of a law that would force doctors to experiment on women.
“What this law really does is make it a crime for physicians to use their best medical judgment and provide their patients with the highest standard of care,” Molly Duane, a lawyer with the Center for Reproductive Rights, which is representing Texas’s abortion providers, told The Intercept. “That’s something that’s unheard of in the context of medicine, broadly. You just don’t see politicians meddling with medicine in that way except that, of course, abortion is always treated differently.”
In the summer of 2017, as the law was set to take effect, abortion providers sued to block it. They were ultimately successful, both in the district court, which permanently enjoined the law, and then again last fall, when a three-judge panel of the 5th Circuit concluded that the law was unconstitutional. “An undue burden, we reiterate, exists when a ‘state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,’” the majority wrote. “The Supreme Court has repeatedly determined that a statute that would effectively ban the safest, most common method of second trimester abortion imposes an undue burden.”
Eight states have passed D&E bans, and every federal court that has taken up the issue to date has blocked those laws from taking effect. When Alabama lost its case before the 11th Circuit, it appealed to the U.S. Supreme Court, which declined to take the case. There, even Justice Clarence Thomas reluctantly concluded that Alabama’s law would not pass legal muster.
But that hasn’t stopped the 5th Circuit from pressing the issue. On October 30, the court made the rare move to rehear the case en banc on its own motion — meaning that without Texas asking them to do so, the judges determined the full court would reconsider whether the previous panel, which split 2-1 to block the law, had made the right decision. “We take this as a concerning signal,” Duane said. “But what we know is that the law and the facts … support us.”
A De Facto Ban
In a hearing held remotely on January 21, Texas’s Solicitor General Kyle Hawkins came out swinging with loaded language and junk science. The state had enacted the D&E ban to “prohibit live fetal dismemberment abortions,” he said. “It’s illegal to kill an animal in Texas by ripping it limb from limb,” and the state’s ban would extend “that same protection … to pain-capable unborn children on the cusp of viability.”
The law wasn’t actually a ban, he argued. “It simply requires those who commit abortions to kill the unborn child in a more humane way before tearing her arms and legs off.” He told the court that there were plenty of ways of doing this, including using drugs like digoxin or potassium chloride to kill the fetus before extracting it from the uterus.
The alternatives Hawkins was trying to normalize are anything but typical. Potassium chloride injections require specialized training and can prove fatal to a woman if administered incorrectly. Digoxin, which is administered via a 4-inch needle inserted into the uterus through the vagina or abdomen, has a failure rate as high as 13 percent, meaning it could take multiple shots to induce demise — and there’s no research to confirm that’s safe. Another method of demise, umbilical cord transection, can cause perforations of the uterus and damage to the cervix.
While some providers do use digoxin, it is administered on a case-by-case basis and, importantly, is not used before 18 weeks. Texas would require doctors to ensure fetal demise starting at 15 weeks — a medically unnecessary and risky proposition, Duane told the court.
“No method of demise works in every case, and a physician cannot know if demise will be successful until after starting a procedure, at which point it is simply too late to turn back,” she said. “Rather than risk going to jail for violating [the ban] or violate their own ethical obligations … some physicians will stop providing abortion altogether.”
If a doctor couldn’t be sure that demise had taken place until the abortion procedure had already begun — patient on the table, feet in stirrups, cervix dilated — then what? Would they be required to continue trying to cause demise? Would they be able to go forward with the abortion without facing potential criminal prosecution? “Tellingly, Texas provides no answer for what a physician should do when a demise attempt fails,” Duane said.
According to Hawkins, even in that scenario, the doctor would have to keep trying to cause demise. Under the law, if a doctor is mid-procedure when they determine demise hasn’t happened, that would not qualify as a “medical emergency” and thus would not protect the doctor against prosecution. “In your run-of-the-mill case, that is not a medical emergency,” Hawkins said. Still, he argued, that didn’t make the law unconstitutional. “In that situation, there are still numerous alternatives available,” he said, like administering additional digoxin, a dose of potassium chloride, or severing the umbilical cord.
“You’re already in the middle of the procedure,” Chief Judge Priscilla Owen said. “But in no circumstances can you finish the abortion procedure with a not-dead fetus.”
Absent an emergency, Hawkins said, that was correct. But since the law hadn’t been allowed to take effect, he argued, there was no way to know if any of this was going to be a problem in practice. And if there were to be any individual patient for whom the law “erected a substantial obstacle” to obtaining an abortion because demise didn’t work or “because of some contraindication or some idiosyncratic medical issue, that patient of course could pursue an as-applied challenge to this law,” he said.
“She’s on the table!” Owen replied.
Invoking Junk Science
While Texas’s position came across as stunningly extreme, Hawkins’s arguments were well-received by a number of the judges who took part in the oral argument, including those who seemed to fancy themselves medical experts or invoked junk science to bolster their apparent approval of the law. One argued that there was an alternate procedure employing suction aspiration after 15 weeks; no, that’s not the standard of care, Duane said. Still others — including Judge Edith Jones and her Trump-appointed colleague Judge James Ho, both of whom are vocally anti-abortion — peppered Duane with questions about “fetal pain.”
“It seems to me that even in high school, if you’re going to dissect a frog, you kill him before you start taking him apart,” Jones said. “And so I’m not quite sure why the state has no interest in giving a growing fetus in the womb the same kind of humanity that we would give a frog.”
Duane pointed out that there is no credible medical evidence that a fetus can feel pain until much later in pregnancy because the necessary neural connections simply don’t exist. (The junk science of fetal pain has been used to pass 20-week abortion bans across the country.)
“But we don’t know about frog pain, do we?” Jones replied.
Ho followed up: “I realize that you dispute that there’s fetal pain in these particular fact patterns, but let’s put that dispute aside,” he said. “Does the state have an interest in preventing and reducing and mitigating fetal pain?”
The question was hard to answer, Duane replied, since fetal pain was not an issue in this case. “The state just does not have that interest here.” Well, Ho said, she could take the question as a hypothetical. “And if you don’t want to answer, that’s fine too,” he said. “I just want to make sure you’re making a decision not to answer the question.”
Duane said that she wasn’t trying to be evasive, but it was “a difficult hypothetical to imagine” since it had no bearing on the case at hand.
In the end, Hawkins argued that not only was the ban constitutional, but the appeals court should also substitute its judgment for that of the district court, which has enjoined the law.
But that’s not what the appellate courts are supposed to do. The district court in this case presided over a five-day trial with 19 witnesses and hundreds of exhibits before concluding that the law could not stand. The 5th Circuit’s job is to review the lower court’s decision for clear error — meaning that if the trial court’s factual determinations based on the evidence presented are plausible in light of the entire record, the appellate court may not reverse the lower court’s opinion, even if it would have decided the case differently.
Still, the 5th Circuit has developed something of a penchant for ignoring the rules and substituting its own judgment for that of the lower court by wholly reimagining the importance of witnesses and evidence at a trial it had no part in. Just last summer, the Supreme Court rebuked the 5th Circuit when it struck down as unconstitutional a Louisiana abortion law that the appellate court had overruled a lower court in order to uphold.
Given the tenor of the arguments in the current case — and the fact that in deciding to rehear it at all, the judges are challenging not only the lower court but also members of their own bench — it does not appear that the 5th Circuit has absorbed the Supreme Court’s reprimand and decided to stay in its own lane.
If the court overturns its previous decision and lets the D&E law stand, it would be affirming a de facto ban in Texas on all abortion after 15 weeks, Duane and others argue, since complying with the law would require doctors to reject safe medical practice and instead perform a procedure of unknown efficacy and safety. To date, the federal courts have not only blocked D&E bans from taking effect but also blocked outright bans on abortion before 15 weeks, which is long before a fetus is viable outside the womb.
Still, if the Texas case makes it to the Supreme Court, what the justices might decide to do is unknown. The Supreme Court is a very different place than it was just months ago; with the elevation of Amy Coney Barrett to fill the seat vacated by the death of Justice Ruth Bader Ginsburg in September, the court now has a solid 6-3 majority that disfavors abortion rights. Indeed, last June, the state of Mississippi appealed to the Supreme Court to uphold its 15-week ban; to date, the court has not decided whether it will take the case.