© Reuters. FILE PHOTO: An exam room at the Planned Parenthood South Austin Health Center is shown in Austin, Texas, U.S. June 27, 2016. REUTERS/Ilana Panich-Linsman By Steve Gorman (Reuters) -The 5th U.S. Circuit Court of Appeals on Wednesday upheld a Texas law effectively banning the most common abortion procedure doctors use for terminating second-trimester
© Reuters. FILE PHOTO: An exam room at the Planned Parenthood South Austin Health Center is shown in Austin, Texas, U.S. June 27, 2016. REUTERS/Ilana Panich-Linsman
By Steve Gorman
(Reuters) -The 5th U.S. Circuit Court of Appeals on Wednesday upheld a Texas law effectively banning the most common abortion procedure doctors use for terminating second-trimester pregnancies, reversing last year’s ruling from a three-judge panel of the same court.
The latest decision marks the first time a U.S. federal court has upheld a prohibition on the standard abortion method used after 15 weeks of pregnancy – dilation and evacuation, or D&E – though a number of other states have acted to outlaw the procedure.
A three-judge panel of the 5th Circuit sided with abortion rights activists last October in affirming a 2017 lower-court opinion that struck down the Texas law as unconstitutional and temporarily barred its enforcement.
The panel’s 2-1 ruling held that the statute in question “unduly burden’s a woman’s constitutionally protected right” to terminate her own pregnancy before the fetus is considered viable.
But the full 17-member 5th Circuit, acting on an appeal from Texas, reheard the case in January and issued its “en banc” decision on Wednesday vacating the panel’s decision, thus putting the Republican-enacted abortion restriction into effect.
Physicians who are found to violate the measure would face a sentence of up to two years in prison.
Nine judges on the New Orleans-based appeals court joined in ruling in favor of the Texas statute, with five judges dissenting and three others recused from the case.
Under the newly reinstated law, D&E abortions are forbidden unless the physician first performs a separate, additional procedure in the woman’s body to bring about the demise of the fetus.
That requirement, appellate Judge James Dennis wrote in his dissent, will force women to unnecessarily undergo “painful, invasive, expensive, and in some cases experimental additional treatments” that pose “significantly elevated risks to the women’s health and well-being.”
But a majority of the court disagreed, finding that plaintiffs failed to show the measure “imposes an undue burden on a large fraction of the women in the relevant circumstances.”
The Texas law refers to the D&E procedure, involving the use of suction and forceps to bring fetal tissue through the woman’s cervix, as a “dismemberment abortion,” a non-medical term eschewed by doctors.
The law’s advocates say its restrictions promote the state’s interest in preventing fetal pain. But Dennis, writing for the 2-1 majority of the appellate panel last year, said, “We find little merit in this argument.”
As he then noted, major medical organizations, including the American College of Obstetricians and Gynecologists and the American Medical Association, have concluded that fetal pain is impossible before 24 weeks of gestation – well beyond the point when abortions are almost never performed.
Although D&Es are the safest abortion method after about 15 weeks of pregnancy – roughly two weeks into the second trimester – nearly 90% of all abortions are performed in the first trimester, according to the Guttmacher Institute, a research group that supports abortion rights.
Similar D&E abortion bans in other states, including Alabama, Arkansas, Indiana, Kansas, Kentucky, Louisiana and Oklahoma, have been struck down by the courts, according to the Center or Reproductive Rights.
Texas, the most populous Republican-dominated state, has been at the forefront of efforts around the country to restrict abortion.
Many of those measures are part of a legal strategy by conservatives to prompt the U.S. Supreme Court to roll back its 1973 landmark Roe v. Wade decision guaranteeing a woman’s right to terminate her pregnancy before viability of the fetus, at around 24-28 weeks of gestation.
Whole Woman’s Health, the lead plaintiff challenging the D&E ban, also led a legal fight in 2016 that ended in the Supreme Court’s striking down a Texas abortion law that had shuttered nearly half the state’s clinics by imposing strict regulations on doctors and facilities.
Earlier this year, Texas politicians enacted a ban on abortion after just six weeks of gestation, a stage during which many women do not even realize they are pregnant.
Several abortion rights groups have filed suit seeking to block that measure before it is due to take effect on Sept. 1.