For the fifth time since 2013, lawyers for Texas will defend an abortion-related law or regulation Tuesday in the Austin federal courthouse, where they hope to reverse a string of legal defeats that included a precedent-setting decision by the U.S. Supreme Court.
The latest lawsuit seeks to block a law, passed by the Legislature in May and signed by Gov. Greg Abbott, that bans “dismemberment abortions,” a term not used in medical literature or by doctors but which targets a procedure known as dilation and evacuation, commonly called D&E abortions.
Abortion providers argue that the law bans the safest and most commonly used procedure for second-trimester procedures, placing an unconstitutional limit on access to abortion that would force women into unnecessary medical procedures at a higher risk and with additional pain and expense.
Lawyers for Attorney General Ken Paxton will ask U.S. District Judge Lee Yeakel to let the law take effect, as scheduled, on Friday, arguing that the state has a legitimate interest in outlawing a “brutal, gruesome and inhumane practice.”
They also say the abortion providers that sued, including Whole Woman’s Health and Planned Parenthood, are not entitled to emergency relief because they waited six weeks before filing the suit on July 20, leading to a rushed appearance before the judge days before the law takes effect.
Each side will have 90 minutes to present its arguments during Tuesday’s hearing, with no witnesses. All expert testimony was submitted to the court in writing.
Yeakel can rule from the bench afterward or take the matter under advisement for a decision that would be expected before Friday.
Seven other states have adopted similar measures, 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 whose lawyers will argue against the Texas law in Austin.
Under the Texas law, physicians can 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 a legal brief.
A substantial body of medical literature, Paxton said, suggests that doctors have three safe and effective methods of ensuring fetal demise.
“Prohibiting this inhumane procedure does not impose any significant health risks or burdens on women,” he said.
Abortion providers disputed Paxton, 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, carry increased health risks for women and are not guaranteed to be effective.
“There is no safe, studied or medically appropriate way for (abortion doctors) to attempt to cause fetal demise. Attempting to do so would impose risks with no medical benefit to the patient, and is untested, has unknown risks and is of uncertain efficacy,” lawyers for the abortion providers wrote.
“There is no fail-safe way to ensure fetal demise before every D&E procedure, and therefore no clear way for physicians to begin any D&E procedure without fear of criminal prosecution,” they added.
The limit on D&E abortions was included in Senate Bill 8, a sweeping measure passed during the Legislature’s regular session that also requires fetal tissue to be buried or cremated, prohibits the use of fetal tissue from abortions in medical research and creates state crimes for two practices already prohibited by federal law: selling fetal body parts and performing “partial-birth” abortions.
Those regulations also take effect Sept. 1, although a federal judge in January blocked Texas from enforcing a similar fetal-burial rule that state health officials had adopted last year. Paxton has appealed that ruling.
In addition, during the special session that ended two weeks ago, the Legislature banned general insurance plans from covering abortions and required stricter reporting for abortion-related medical complications.
Previous abortion cases in Austin federal court
In four other cases since 2013, the outcomes have not favored Texas:
• In October 2013, U.S. District Judge Lee Yeakel — who was appointed by President George W. Bush — blocked a law requiring abortion doctors to gain admitting privileges at a nearby hospital. Yeakel was overturned on appeal, but it was a short-lived victory for Texas.
• In August 2014, Yeakel overturned the admitting privileges rule and another provision requiring that all abortions be performed in hospitallike settings, saying they combined to create a system designed to close clinics, not improve women’s health. That ruling was upheld by the U.S. Supreme Court in 2016.
• In January, U.S. District Judge Sam Sparks — who was appointed by President George H.W. Bush — blocked Texas from enforcing a state rule requiring that fetal remains be buried or cremated. That ruling, saying the regulation placed an unacceptable burden on access to abortion, has been appealed.
• In February, Sparks blocked efforts to remove Planned Parenthood from Medicaid, saying Texas officials improperly tried to punish the organization by relying on unsubstantiated allegations in an undercover video shot by abortion opponents. That ruling is also being appealed.
Texas also lost two other cases in 2011-12 when Sparks blocked a law requiring pre-abortion sonograms and Yeakel prevented Texas from ousting Planned Parenthood from the Women’s Health Program. Both rulings, however, were reversed on appeal.