Fate of Texas abortion law now in judge’s hands


State law promotes respect for fetal life, Texas lawyer says.

Abortion providers argue that the law subjects women to untested, unnecessary and risky procedures.

The fate of a Texas law regulating second-trimester abortions is in a federal judge’s hands after a five-day trial in Austin ended Wednesday evening with sharp disagreement over the law’s impact.

A lawyer for Texas argued that the law, passed by the Legislature in May as part of Senate Bill 8, merely requires abortion doctors to ensure fetal demise before starting a second trimester abortion procedure known as dilation and evacuation, or D&E, in which “forceps are used to tear apart the baby.”

“The state has a legitimate interest in banning the living dismemberment of an unborn child,” said Darren McCarty with the Texas attorney general’s office. “All SB 8 does is regulate the moment of death, the moment of fetal termination, and nothing more.”

A lawyer for several Texas abortion providers disagreed, arguing Wednesday that the law places doctors in the untenable position of subjecting patients to untested, invasive and risky procedures to attempt fetal demise or face going to prison for violating the law.

RELATED: Texas abortion law targets ‘brutal’ procedure, doctor testifies

Injecting toxins into the fetus via a four-inch needle inserted through the abdomen or vagina raises the risk of infection, bleeding and other health problems and can fail to cause fetal demise in some cases, requiring additional risky steps, lawyer Janet Crepps said.

“SB 8 will turn back the clock on advances in medical care that have made D&E abortions the safest, most common second-trimester procedure,” Crepps said. “The state can’t regulate abortion by making a procedure less safe for the woman.”

In addition, Crepps said, D&E abortions take place after the 15th week of pregnancy, but injected toxins are not used earlier than the 18th week, leaving doctors to use untested methods of fetal demise.

Doctors should not act without controlled scientific studies to assess the risks and benefits of the injections, she said, but Texas is instead requiring “physicians to proceed into uncharted territory and hope for the best.”

Crepps urged U.S. District Judge Lee Yeakel to toss out the law as unconstitutional.

Yeakel, given hundreds of pages of exhibits to wade through, did not indicate when he would issue a written opinion but acknowledged that “these are hard cases for the court to consider.”

During closing arguments Wednesday, Yeakel pressed the lawyers to focus on whether the law creates an “undue burden” on access to abortion.

“When we deal with cases with political ramifications, it can be difficult to get through beliefs and get down to the legal issues,” he said.

RELATED: Texas abortion law adds risk for patients, doctors testify

McCarty disputed abortion providers’ claims that the methods of fetal demise were risky and difficult to administer, adding that laws making abortions more costly or difficult to get do not impose an undue burden on access for women.

The Supreme Court has long said that states can impose regulations that protect the health of women and “promote respect for life, including the life of the unborn,” as long as access to abortion is not improperly limited, he said.

“The question is: Can Texas require that a fully formed and nearly viable human child be accorded a more humane manner of death?” McCarty said.

Crepps said the law requiring fetal demise would force doctors to stop providing D&E abortions or severely limit the procedure, hampering access for patients after 15 weeks of pregnancy. The requirement also would raise costs and require an extra office visit, making it “difficult if not impossible” for low-income women to afford the procedure, take time off work and find child care, she said.

The risks far outweigh the benefits — the definition of undue burden, Crepps said.

At the urging of abortion providers, Yeakel temporarily blocked the Texas law on Aug. 31, one day before it was to take effect, and set a follow-up hearing for mid-September.

Both sides agreed to wait until this month so a full-scale trial could be held. As part of the agreement, Texas Attorney General Ken Paxton said the regulation will not be enforced until Nov. 22 to give Yeakel time to issue a written opinion.

No matter how Yeakel rules, the losing side will appeal, creating the possibility for a precedent-setting ruling by the 5th U.S. Circuit Court of Appeals — which oversees Texas, Louisiana and Mississippi — and possibly the Supreme Court.

Reader Comments ...

Next Up in Local

Austin ISD adopts 2018-19 school calendar. Here’s what changed
Austin ISD adopts 2018-19 school calendar. Here’s what changed

The Austin district board Monday night approved the 2018-19 school calendar, and students will attend school one less day than this year. Here are the highlights: • Students will be back in class Monday, Aug. 20, but summer will come early as they get out May 24, 2019, the Friday before Memorial Day. • Students will attend school 176 days...
HIT-AND-RUN CASE: Car strikes motorcyclist, SUV then runs over motorcycle; both flee, police say 
HIT-AND-RUN CASE: Car strikes motorcyclist, SUV then runs over motorcycle; both flee, police say 

Austin police are looking for two drivers who left the scene of a hit-and-run early Sunday after the first one struck a motorcyclist and the second one ran over the victim’s motorcycle.   The motorcyclist was heading north on South Congress Avenue about 2 a.m. when someone driving a black Lexus in the opposite direction hit him while...
Group takes aim at Austin schools with names tied to Confederacy
Group takes aim at Austin schools with names tied to Confederacy

Days after one Austin district trustee was criticized for publicly calling out his peers for delaying a vote on changing school names with ties to the Confederacy, more than a dozen community members Monday night announced the creation of a work group to push the changes forward. The group of 15, formed by the East Austin Coalition for Quality Education...
Austin-area federal employees expected to return to work Tuesday
Austin-area federal employees expected to return to work Tuesday

As the federal government shutdown rolled into Monday — the only business day of the three-day closure — calls to affected Austin-area agencies went unanswered, building doors were locked and employees stayed home. At Fort Hood, 40 percent of about 6,000 civilian employees were told to not come into work. When reached by cell phone, Christopher...
New panel launching effort to identify Texas school finance fix
New panel launching effort to identify Texas school finance fix

Two years after the Texas Supreme Court suggested sweeping reforms to the school finance system, a newly formed state commission will hold the first of several meetings Tuesday in an effort to find a fix to the system by the end of December. The 13-member Texas Commission on Public School Finance, composed of school district officials, lawmakers and...
More Stories