The next round in the abortion wars, fought after virtually every recent session of the Texas Legislature, begins Thursday in the federal courthouse in downtown Austin.
The focus of the five-day trial is a law that bans “dismemberment abortions,” a term that isn’t used in medical literature but which targets a procedure known as dilation and evacuation, commonly called D&E abortions.
Abortion providers sued to overturn the law, arguing that the regulation places improper limits on a constitutionally protected right by outlawing D&E abortions, the safest and most common type of procedure that is used beginning in the 15th week of pregnancy.
If allowed to stand, the law, included in Senate Bill 8’s sweeping abortion regulations that were approved by the Legislature in May, will force women to undergo more complex and risky procedures, including “painful, untested and invasive medical procedures,” the abortion providers said.
Defending the law, state Attorney General Ken Paxton said Texas has an interest in banning a “brutal, gruesome and inhumane” procedure with regulations that do not place additional burdens on women.
Paxton lost the first stage of the legal battle when U.S. District Judge Lee Yeakel temporarily blocked the law from taking effect on Sept. 1 to allow time for both sides to prepare for the trial, much of which will focus on medical testimony provided by more than 20 doctors who were listed as witnesses in pretrial filings.
As part of a pretrial agreement, Texas will not enforce the law until Nov. 22 to give Yeakel time to deliver a written opinion after the trial, which is set to end Wednesday.
Yeakel’s ruling, however, will be appealed by the losing side, meaning the issue will ultimately be decided by the 5th U.S. Circuit Court of Appeals — generally considered among the nation’s most conservative courts — with a chance the Supreme Court could weigh in as well.
Much of the trial testimony is expected to focus on medical issues because the Texas law allows doctors to perform D&E abortions if they first take steps to ensure “fetal demise”— a provision added because the procedure “involves the limb-by-limb destruction of a living unborn child, and our society has long recognized dismemberment of living beings as particularly cruel,” Paxton told the judge in pretrial documents.
The law presents no obstacle to abortion, Paxton added, because three procedures are available to cause fetal demise that are “very safe and highly effective.”
Abortion providers disagreed, telling Yeakel that most D&E abortions are performed after 15 weeks of pregnancy, but the three methods have not been tested on fetuses younger than 18 weeks, requiring doctors to essentially experiment on patients in ways that carry increased risks for infection, pain and injury to the woman for no medical benefit.
The law also places doctors at an unfair risk of prosecution because there is no fail-safe way to ensure fetal demise, the abortion providers said.
Much of the trial testimony is expected to delve into the three methods:
• Digoxin, a drug that stops the fetal heartbeat. Paxton says the drug is safe, has a low complication rate and can be administered twice in the “rare” cases in which it is not effective. Abortion providers say digoxin, delivered through a long needle, can cause infection, can be “difficult if not impossible” to administer to some women and has a 10 percent failure rate.
• An injection of potassium chloride into the fetal heart. The procedure is fast, effective and widely used for causing fetal demise, Paxton said. Abortion providers say the injections are difficult, requiring years of training and hospital-grade equipment, and can be fatal to the woman if improperly given.
• Cutting the umbilical cord. Paxton said abortion doctors routinely use the procedure, which studies have shown to be safe and effective. Abortion providers say the procedure can be difficult, particularly at earlier fetal ages when the cord is small and hard to reach, and it exposes the woman to uterine perforation, cervical injury and bleeding.
Seven other states have adopted similar limits on second-trimester abortions, with courts halting enforcement in five of them: Alabama, Arkansas, Kansas, Louisiana and Oklahoma. Laws in Mississippi and West Virginia were not challenged because providers there do not offer the restricted type of abortions, according to the Center for Reproductive Rights, a legal advocacy group.