Heather Hacker, Texas' assistant solicitor general, made it clear from the start Monday that one of the most controversial provisions of Senate Bill 8, Texas' latest and greatest piece of sweeping anti-abortion legislation, isn't about protecting women's health, as Texas Republicans have so often argued when they've defended anti-choice laws in court.
In front of the 5th U.S. Circuit Court of Appeals in New Orleans, Hacker described dilation and evacuation, the most common method of second-trimester abortion, in the type of graphic detail preferred by Texas' powerful pro-life lobby. Fetuses are torn apart limb from limb, she said.
“It’s illegal to kill an animal that way in Texas. We wouldn’t execute a murderer that way, and notably the abortion providers don’t tell women that that’s what the procedure entails,” Hacker said.
More than 4,000 Texas women underwent a dilation and evacuation procedure in Texas in 2015, the most recent year for which records are available from the Department of State Health Services. Anti-abortion groups immediately sought to ban the procedure — which they refer to as "dismemberment abortion," a non-medical term — in the aftermath of the Supreme Court's decision in 2016's Whole Woman's Health v. Hellerdstedt. That decision struck down significant portions of Texas' previous anti-abortion law, 2013's House Bill 2, including a provision that required all abortion clinics be outfitted like mini surgical hospitals.
Despite HB 2's having been overturned, many of the clinics in the state that closed while it was in effect remain closed. As a result, wait times for abortions are longer, forcing many women to wait until the second trimester to seek the procedure.
"You push more women into the second trimester, so then coming back ... and basically passing a law to ban second trimester abortion is no accident," Lucy Stein, then the advocacy director for Progress Texas, told the Observer last year. "It's by design. It's alarming."
Last November, U.S. District Judge Lee Yeakel ruled against the ban, concluding that it violated current Supreme Court precedent by creating an undue burden for women seeking an abortion.
"The court concludes that requiring a woman to undergo an unwanted, risky, invasive, and experimental procedure in exchange for exercising her right to choose an abortion, substantially burdens that right," Yeakel wrote in his opinion, dismissing the state's argument that women should seek an alternative method of abortion, like an injection of the drug Digoxin, rather than dilation and evacuation.
Before the 5th Circuit, Janet Crepps, senior counsel for the Center for Reproductive Rights, reiterated that idea Wednesday. Digoxin injections, which stop a fetus' heartbeat, are "invasive, medically unnecessary and pose additional, significant health risks to women" seeking an abortion in their second trimester, Crepps said.
The final outcome of the case, whether it's decided at the 5th Circuit or after being appealed to the Supreme Court, will determine whether states can ban specific procedures to effectively limit the time frame in which a woman can obtain an abortion. Texas already has a ban on abortions at 20 weeks after conception. The ban on D&E would basically move that limit to 15 weeks because 80 percent of abortions performed after that time are done by dilation and evacuation.
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