Demonstrators gather before Supreme Court arguments about House Bill 2.
Demonstrators gather before Supreme Court arguments about House Bill 2.
Stephen Young

Judge Stymies Texas' Newest Anti-Abortion Law

U.S. District Judge Lee Yeakel of Austin temporarily blocked a new state of Texas law Thursday that would've banned the most commonly used procedure for second-trimester abortions. Yeakel ruled that without the temporary restraining order, women in Texas could be denied access to the safest abortion procedure available to them while the constitutionality of the new law is still up in the air.

The ruling came just one day before the law was supposed to go into effect.

“The act leaves that woman and her physician with abortion procedures that are more complex, risky, expensive, difficult for many women to arrange, and often involve multiday visits to physicians and overnight hospital stays,” Yeakel said.

The law, Senate Bill 8, became a priority for Texas' anti-abortion community after a 2016 Supreme Court decision threw out several key portions of Texas' controversial 2013 abortion bill, including a provision that would've required clinics providing abortions to be outfitted similarly to hospitals and a requirement that every doctors performing abortions have admitting privileges at a hospital near the clinic at which he or she performs abortions.

The new bill, designed in large part by Texas Right to Life and its legislative director, John Seago, banned an abortion procedure called dilation and extraction. Seago and other pro-life advocates contend that their bill is intended to stop a procedure they refer to as "dismemberment abortion," which is not a medical term. Abortion-rights supporters say the bill is another way around women's constitutionally guaranteed right to abortion. [content-1]
"Today's decision protects our patients' access to one of the safest and most common methods of abortion," Ken Lambrect, president and CEO of Planned Parenthood of Greater Texas, said after the ruling. "This ruling means that patients and doctors can together make decisions based on medical science rather than political goals."

In a press release, Texas Right to Life said Yeakel's ruling was merely a bump in road in the lawsuit over the bill, which seems destined to head to the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court. "While some pro-lifers may be tempted to despair at today’s ruling, this is the first step in a longer and consequential legal battle over this dynamic and historic legislation."

Over the the course of that legal battle, there are two key questions that must be addressed. First, the courts must decide whether Senate Bill 8's enforcement would create an undue burden on women seeking abortions in the state of Texas. In its decision last summer concerning the previous abortion bill, the Supreme Court found that the law's effects, primarily clinic closures, would've forced women to travel hundreds of miles to get abortions — an undue burden, according to the court's four liberal justices and Justice Anthony Kennedy. Second, a decision in this case will likely determine whether the Texas Legislature has a state interest in protecting fetuses from pain. [content-3]
Anti-abortion advocates contend that an unchallenged piece of the 2013 abortion law — a state ban on abortions after 20 weeks — creates such an interest. “The component of House Bill 2 that we were most interested in, the top priority, was the preborn pain section that prohibited elective abortions after 20 weeks,” Seago told the Observer in 2016.

While medical literature on the subject, including a comprehensive report published by the UK Royal College of Obstetricians and Gynaecologists in 2010, says that the earliest a fetus might be able to feel pain is 24 weeks into a pregnancy, those who oppose abortion have seized on the argument that they are merely trying to prevent pain for fetuses, rather than further limiting abortion in the state simply because they don't like abortion. If Senate Bill 8 is upheld, anti-abortion forces in Texas could continue to chip away at abortion rights by vastly limiting options for women seeking abortions, a step-by-step approach Seago told the Observer is key to undermining Roe v. Wade. [content-2]
As it has done throughout its fights against Texas abortion laws passed in 2011, 2013 and this year, the legal team at the Center for Reproductive Rights continues to argue that none of the Texas laws have to do with patient safety or public health, as the state of Texas argued in court this week.

The next hearing in the lawsuit over Senate Bill 8 is scheduled for Sept. 14, when Yeakel will rule on whether his temporary restraining order should become a temporary injunction. Texas is the eighth state legislature to vote to ban dilation and evacuation abortion, but similar laws elsewhere have been pre-empted by legal challenges.

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