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.
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.
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.