Attorneys Fight D&E Abortion Ban in Court

Attorneys with the Center for Reproductive Rights were in a federal court in Austin today to argue that a new anti-choice law, set to go into effect this Friday (Sept. 1), would unduly burden Texas women seeking abortion access and subject them to “medical experimentation.”

Found within Senate Bill 8, a package of abortion restrictions passed by the Legislature during the regular session, is a provision that bans dilation and evacuation, or D&E abortion – the safest and most common method during the second trimester, which is around 15 weeks of pregnancy. The law also criminalizes doctors who violate it. Without the procedure available, women would be forced to undergo alternative methods that carry additional risk. Planned Parenthood, Austin attorneys, and a handful of abortion providers, including Whole Woman’s Health, sued the state – and on Tuesday got their chance to ask that U.S. Judge Lee Yeakel at least temporarily halt the law before a full trial this fall.

While the state contends it’s not banning D&E, only mandating “fetal demise” before the procedure, the law leaves women just three alternatives that CRR attorney Janet Crepps said are “wholly unreasonable” and medically unnecessary procedures that are tantamount to forcing “medical experimentation” on Texas women. Crepps also argued the law compels doctors to go against their best medical judgment and causes irreparable harm for women, unable to access their constitutional right to abortion.

While CRR's win at the U.S. Supreme Court in Whole Woman’s Health v Hellerstedt made clear that a state must show a health benefit when passing abortion restrictions, the state’s legal team made no such case. The law didn’t arise out of concern for women’s health or because of a problem with the procedure, Crepps noted. Instead, state lawyers, employing graphic language, said the law is meant to end the “brutal, gruesome, and inhumane” practice of D&E abortion based on the “ethos of a civil, humane society.”

Yeakel questioned the legislative process by which the law passed; it was slipped in as a last-minute amendment to an abortion-related bill on the House floor. “The judge spoke to how the Lege passed the law, which was swiftly and without debate,” Yvonne Gutierrez, executive director of Planned Parenthood Texas Votes, told the Chronicle after the two-hour hearing. “The court now has to see what we see, which is that this is yet another politically driven effort by politicians who have continually attacked women’s right to abortion.”

This being anything but his first rodeo when it comes to presiding over litigation concerning state anti-choice laws, Yeakel wondered aloud if Texas attorneys were merely using his court as a “whistle stop” before appealing to the 5th Circuit and beyond – the state’s ongoing pattern over the past few years when it comes to abortion restrictions halted by federal judges. “There is a constant and never ending stream of these cases, no matter how this court rules,” said Yeakel.