For the third time this year, a federal judge has tossed out an abortion-related regulation in Texas — this time a law that bans a common type of second-trimester abortion unless doctors first employ an added procedure to ensure fetal demise.
In a ruling issued Wednesday afternoon, U.S. District Judge Lee Yeakel of Austin said the law requires doctors to use risky, unproven and medically unnecessary methods to cause fetal demise before beginning a dilation and evacuation abortion, the safest and most common such procedure after the 15th week of pregnancy.
The added procedure, typically conducted by injecting toxins into the fetus via a 4-inch needle inserted through the abdomen or vagina, carries increased risks of infection and other health complications, Yeakel wrote.
“The court is unaware of any other medical context that requires a doctor — in contravention of the doctor’s medical judgment and the best interest of the patient — to conduct a medical procedure that delivers no benefit to the woman,” he wrote.
Within an hour of the ruling, Texas Attorney General Ken Paxton filed a notice of appeal with the 5th U.S. Circuit Court of Appeals, saying he intended to reinstate the provision of Senate Bill 8 — approved by the Legislature in May — that was meant to protect “unborn human life from ghastly dismemberment abortions.”
“No just society should tolerate the tearing of living human beings to pieces,” Paxton said, adding that the law “treats the unborn with dignity and respect and protects the integrity of the medical profession.”
“We will defend Senate Bill 8 all the way to the U.S. Supreme Court, if necessary,” Paxton said.
In his ruling, Yeakel acknowledged that the state has an interest in preserving the life of a fetus, as determined by the Supreme Court. But the state’s interest does not supersede a woman’s right to an abortion, he said.
“That a woman may make the decision to have an abortion before a fetus may survive outside her womb is solely and exclusively the woman’s decision. The power to make this decision is her right,” Yeakel wrote.
“The state’s position is that the right and the interest are entitled to equal weight. But this is incorrect,” the judge added. “The state’s legitimate interest in fetal life does not allow the imposition of an additional medical procedure … not driven by medical necessity. Here, the state’s interest must give way to the woman’s right.”
At the urging of abortion providers, Yeakel temporarily blocked the Texas law on Aug. 31, the day before it was to take effect. That 14-day temporary restraining order was extended until Wednesday to allow time for Yeakel to issue a written opinion after a five-day trial on the law’s constitutionality that took place earlier this month.
Abortion rights advocates praised Wednesday’s decision.
“Politics should never tie the hands of doctors or bar women from safe medical care,” said Cecile Richards, president of Planned Parenthood Federation of America and daughter of former Gov. Ann Richards. “Lawmakers in Texas have been trying for years to ban abortion by any means necessary. This law is the same underhanded agenda in a different package, and it’s women who get hurt in the process.”
Abortion opponents said Wednesday that they hoped the Texas law would get a fairer hearing before 5th Circuit Court, which has upheld several Texas abortion regulations that had been overturned by a lower court, including the requirement for a pre-abortion sonogram.
“We’ve been down this road before,” John Seago, legislative director for Texas Right to Life, said on Twitter. “Hopefully the state’s interest in protecting innocent human life will be acknowledged.”
Seven other states have passed similar laws targeting “dismemberment abortions,” but courts have blocked five states from enforcing the ban — including rulings from federal judges in Alabama and Arkansas that also have been appealed to separate U.S. circuit courts. The laws in the other two states were not challenged.
Wednesday’s ruling followed decisions striking down two Texas abortion-related regulations earlier this year.
• In January, U.S. District Judge Sam Sparks of Austin voided a state rule requiring health facilities to bury or cremate fetal tissue, whether from an abortion or miscarriage.
• In February, Sparks also blocked Texas from ousting Planned Parenthood as a Medicaid provider for contraceptives and related care.
Both rulings also have been appealed to the 5th Circuit Court.