Judge Strikes Down Texas Abortion Ban
Yeakel slams D&E ban as an "undue burden" on women
By Mary Tuma,
4:35PM, Wed. Nov. 22, 2017
Texas abortion providers secured a victory today when U.S. Federal Judge Lee Yeakel struck down the state’s latest abortion ban, saying it unconstitutionally poses an “undue burden” on women.
Added to package bill Senate Bill 8 during this year’s legislative session, the ban on dilation and evacuation abortion (D&E) effectively bars the safest and most common type of procedure at the second trimester, as alternative procedures involving fetal demise are riskier, more expensive, and could cause health complications. During a five-day trial in Yeakel’s courtroom earlier this month, Whole Woman’s Health and Planned Parenthood, represented by the Center for Reproductive Rights, argued the law poses “grave harm” and an undue burden on women and would lead to invasive and unnecessary and risky procedures on abortion patients. Meanwhile, state attorneys claimed the law ensures dignity for fetal life – or in the words of their boss, Attorney General Ken Paxton – an “unborn child.” The state provided no concrete evidence the law would protect the health and safety of Texas women. Originally slated to take effect Sept. 1, Yeakel previously placed a temporary halt on the law.
Whole Woman’s Health President and CEO Amy Hagstrom Miller called the ruling “a huge win for Texas women and families. … I knew that after our historic Whole Woman’s Health [Supreme Court] decision last year, we would have to continue to fight. The pattern of incessant and dangerous attacks on women’s healthcare has not stopped. That is why we are here, and why we are thrilled to prevail.”
Yeakel largely agreed with plaintiffs, writing in his ruling that the law would force women seeking second-trimester abortion at 15 weeks to undergo “medically unnecessary and invasive” procedures with additional risks of complications, which “substantially burdens” their right to choose abortion care. Medical testimony given at trial convinced Yeakel that fetal demise as an alternative to D&E offers “no additional medical benefit” to a woman. Even if the law alone does not create an undue burden, writes the judge, its interaction with other Texas laws (like the 24-hour pre-abortion sonogram requirement) will push women seeking abortion "above the undue threshold."
While calling the state’s interest in promoting respect for the life of the unborn “legitimate,” Yeakel said it wasn’t “sufficient to justify such a substantial obstacle to the constitutionally protected right of a woman to terminate a pregnancy.” The state’s interest shouldn’t be given equal weight to a woman’s right to choose abortion, he wrote. Yeakel deemed the law an “inappropriate use of the state’s regulatory power over the medical profession to bar certain medical procedures” and that the law’s burdens “exceed its benefits, those burdens are undue, and the obstacles they embody are, by definition, substantial,” aligning his opinion with every other judge who has examined similar bans in states including Arkansas, Alabama, Kansas, and Oklahoma.
Of course, this isn’t the last stop for the abortion ban law. Shortly after the ruling, Paxton said the state will appeal Yeakel’s ruling to the conservative 5th Circuit Court of Appeals, the perennial path for Texas anti-choice laws, as a way of “upholding Texas’ lawful authority to protect the dignity of innocent unborn children as they die.” Contingent on the 5th’s ruling and subsequent appeals, the law could follow the same path as HB 2, and eventually reach the U.S. Supreme Court. Stay tuned.
This story has been updated to include comment from Amy Hagstrom Miller and Ken Paxton.