Texas Law Restricting Evacuation Abortion Procedure Nixed (1)

Oct. 13, 2020, 11:50 PM; Updated: Oct. 23, 2020, 1:11 PM

A Texas law restricting dilation-and-evacuation abortion is unconstitutional, the Fifth Circuit ruled on Tuesday, affirming a lower court’s decision that struck down the measure.

Senate Bill 8’s restrictions on “the safest, most common method of second trimester abortion” create an undue burden for women seeking the procedure, the U.S. Court of Appeals for the Fifth Circuit said.

In one of the first rulings to interpret the U.S. Supreme Court’s undue-burden decision in June Medical Services LLC v. Russo, the Fifth Circuit found the 4-1-4 decision didn’t control. In June Medical, the Supreme Court narrowly struck down a Louisiana law that required physicians who perform abortions to have admitting privileges at local hospitals.

The circuit court found the descriptions of the undue burden test in the Supreme Court’s plurality and concurring opinions were “not logically compatible,” and the decision didn’t create a “controlling rule that establishes or overrules precedent.”

The law barred D&E abortions unless the doctor first ensured “fetal demise” in utero, which the court called an “invasive, additional step” that isn’t part of a typical D&E procedure. The Fifth Circuit agreed with a group of eight abortion clinics and three abortion providers who argued this additional step created an undue burden on women seeking an abortion.

The court said the state’s proposed fetal-demise procedures were “painful and invasive,” carried severe risks for the woman, and would be “virtually impossible” to train physicians at all Texas abortion clinics to perform, among other things. The law would also increase the length of such abortions from one day to two, which would add to costs associated with travel, lodging, time away from work, and child care, and be particularly burdensome for low-income women, the court said.

The law “forces abortion providers to act contrary to their medical judgment and the best interest of their patient by conducting a medical procedure that delivers no benefit to the woman,” the court said. “And without substantial additional training, the State’s proposed fetal-demise methods are not feasible for any physician other than subspecialists in the high-risk field of maternal-fetal medicine.”

The court also rejected Texas’ argument that the benefits of the law outweighed its burdens, finding its alleged health benefits “nonexistent” and any other benefits “limited.”

Judge James L. Dennis wrote the opinion, joined by Judges Carl E. Stewart.

The court modified the opinion Oct. 22 to add a dissent by Judge Don R. Willett. The judge argued the law doesn’t ban dilation and evacuation procedures. It merely ensures that they are done humanely, he said.

Willett also disagreed with the court’s decision to uphold the lower court’s application of the burden-benefit balancing test.

The Center for Reproductive Rights, Planned Parenthood Federation of America, Morrison & Foerster LLP, and Patrick J. O’Connell of Austin, Texas, represented the plaintiffs.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Whole Woman’s Health v. Paxton, 5th Cir., No. 17-51060, 10/13/20.

(Updates last three substantive grafs to reflect issuance of modified opinion.)

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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