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

Opinion: Playboy comes to D.C.

Playboy Enterprises just announced that it has purchased a table at this year’s White House Correspondents Association dinner. Swell. Just what we need. The dinner, as you’ve probably heard, is an annual ritual of narcissism in which leading press figures don black tie and hope to see, or better yet, be seen with, Hollywood stars. Like...
California murder suspect arrested after SWAT standoff in Pflugerville
California murder suspect arrested after SWAT standoff in Pflugerville

A California man suspected of fatally stabbing his ex-girlfriend earlier this week was arrested in Pflugerville on Saturday after an hourslong standoff with SWAT officers. Kevin Darnell Dickson, 55, was taken into custody by the U.S. Marshals Lone Star Fugitive Task Force and Austin police at about 1 p.m. Saturday. He had been barricaded inside a home...
Austin area dodges severe storms, drought conditions remain

Austin on Saturday dodged severe storms that had been forecast for the region, with only light drizzle falling in parts of the metro area in the morning, which did little to alleviate dry conditions in the region. The National Weather Service on Saturday morning had warned of a potential for severe storms with possible hail and damaging winds in a...
2 pedestrians struck, killed on I-35 in separate incidents

AUSTIN 2 struck, killed on I-35 in separate incidents A man and a woman walking on Interstate 35 were struck by vehicles and killed in two separate incidents Saturday, Austin-Travis County EMS officials said. Medics first responded at 3:42 a.m. to a South Austin vehicle-pedestrian crash in the 8100 block of south I-35 along the frontage road north...
At funeral, Barbara Bush called ‘first lady of the greatest generation’
At funeral, Barbara Bush called ‘first lady of the greatest generation’

Barbara Bush was remembered as the “first lady of the greatest generation” during a funeral Saturday attended by four former U.S. presidents and roughly 1,500 other people who filled the church with laughter as much as with tears, with many recalling her quick wit and devotion to family. Former Florida Gov. Jeb Bush joked that his mother...
More Stories