A federal appeals court has upheld a Texas law banning “live dismemberment” abortions that are used to kill an unborn baby in the second trimester.
The most common type of abortion performed at that gestation stage is referred to as a dilation and evacuation (D&E) procedure. The Texas law, S.B. 8, was passed in 2017 and regulates the way abortionists can perform this abortion method.
S.B. 8 was originally blocked by a federal district court. That ruling was appealed to the 5th U.S. Circuit Court of Appeals, where a three-judge panel affirmed the district court’s judgement. However, the case was appealed again and was granted a rehearing by the full 5th Circuit (known as an en banc rehearing), which overruled the district court and upheld the law on August 18, 2021.
The district court said S.B. 8 was unconstitutional because it imposed an “undue burden” on women seeking an abortion, and it determined “that SB8 amounted to a ban on all D&E abortions.”
However, the 5th Circuit disagreed and said that “doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use.”
Often, the language we use surrounding the issue of abortion is sterilized to obscure what actually happens during an abortion. However, the 5th Circuit opinion, quoting S.B. 8, didn’t shy away from the truth.
“SB8 refers to the prohibited method as ‘live dismemberment’ because doctors use forceps to separate, terminate, and remove the fetus,” the 5th Circuit said. “SB8 requires doctors to use alternative fetal-death methods.”
The D&E procedure involves two steps. First, the woman’s cervix is dilated using medication, and if needed, osmotic dilators.
Second, the abortionist evacuates (kills and removes) the preborn baby.
As the 5th Circuit explains, doctors use three main evacuation methods:
- “The suction method alone to terminate, separate, and remove the fetus.”
- “Suction and forceps together to terminate, separate, and remove the fetus.”
- “Various fetal-death techniques (e.g., digoxin injections) to terminate the fetus before using forceps (sometimes combined with suction) to separate and remove the fetus.”
According to the court’s opinion, S.B. 8 “allows any abortion accomplished by dilation and suction alone (the first method) or accomplished by fetal death caused without forceps followed by evacuation with forceps (the third method), but regulates the second method by prohibiting a doctor from using forceps to separate the fetal tissue and thereby terminate the fetus via live dismemberment.”
The Texas state legislature was particularly descriptive in its definition of what a “dismemberment abortion” is, which it defined as follows:
“An abortion in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of a the unborn child’s body to cut or rip the piece from the body.”
In its opinion, the 5th Circuit noted that the only thing S.B. 8 does “is prohibit one particular evacuation method in one particular set of circumstances—live dismemberment by forceps when a medical emergency does not exist.”
Texas Values, the state’s family policy council (FPC), declared the ruling a “victory for the unborn.”
“Texans celebrate this long-overdue victory,” Jonathan Saenz, President and Attorney for Texas Values, said in a statement.
“The horrors of dismemberment abortions are obvious to everyone. No person, especially an innocent child, should be ripped or torn while fully alive and capable of experiencing pain. If this case is appealed, we are confident that the Supreme Court will agree.”
It’s unclear at this point whether, if appealed, the Supreme Court will agree to reconsider the 5th Circuit’s ruling. But should any updates in this case occur, The Daily Citizen will keep you apprised.
The case is Whole Woman’s Health v. Paxton.
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