The Fifth Circuit Court of Appeals struck down Tuesday evening a Texas law banning the most common and safest type of second trimester abortion, marking an unlikely victory for reproductive rights advocates from one of the most conservative appeals courts.
The statute effectively outlawed the dilation and evacuation procedure, known as D&E, in which doctors open the cervix and remove fetal tissue from the uterus. The law would only allow the procedure, the one usually used for abortions after 14 weeks of pregnancy, if the “fetal demise” occurs in the uterus, which would require an invasive additional step for doctors and women that is not part of a typical D&E.
In its Whole Woman’s Health v. Ken Paxton decision, the Fifth Circuit ruled that the law “unduly burdens a woman’s constitutionally-protected right to obtain a previability abortion” because it “requires a woman to undergo an additional and medically unnecessary procedure to cause fetal demise before she may obtain a dilation and evacuation abortion.”
Louisiana passed a similar law in 2016, with exceptions only for a serious health risk to the mother, but it is not currently in effect. Several other states have had their own bans challenged in court, including Alabama, Kansas and Oklahoma. It is unclear if the ruling will apply to Louisiana and Mississippi, which are also in the Fifth Circuit’s jurisdiction and have similar bans on the books.
The Texas law started out as a bill banning a late-term abortion procedure that was already outlawed at the federal level in 2003 and forbidding the sale or donation of embryonic and fetal tissue. But after several amendments, the final form of the law had many other parts, including requiring the burial or cremation of embryonic and fetal tissue. The D&E ban, however, was the biggest change.
The law also included criminal penalties for doctors who did not adhere to it.
Eight licensed abortion clinics and three abortion providers challenged the Texas law, and the Fifth Circuit, which covers Louisiana, Mississippi and Texas, ruled in their favor and against the state of Texas.
The ruling in favor of abortion rights comes as Louisiana residents begin to vote on whether they want to add an amendment to the state constitution declaring it does not include the right to abortion. It also comes in the midst of Judge Amy Coney Barrett’s Senate confirmation hearings. If confirmed to the Supreme Court, Barrett would give the court and even stronger anti-abortion majority, which could impact decades of future abortion legislation.
Barrett is from Louisiana.