On Wednesday, the United States Fifth Circuit Court of Appeals upheld a Texas law banning dismemberment abortion on living preborn children, a procedure typically performed in the second trimester.
Enacted in 2017, Senate Bill 8 (SB 8) makes it a felony to commit a D&E dismemberment abortion in which a living preborn baby is extracted piece by piece using forceps, something the Texas legislature has called “brutal and inhumane.” Physicians in violation of the Texas law could face up to two years in prison.
Last October, a three-judge panel struck the law down for “unduly burdening” a woman seeking an abortion. The state appealed the court’s decision, and Wednesday’s decision by the full 17-member court upheld SB 8.
According to Reuters, the Fifth Circuit is the first federal court to uphold a D&E abortion ban, as similar D&E bans in other states have been struck down. The ruling stated that the law “falls comfortably within the orbit of [Supreme Court precedent] as a regulation that respects the important state and societal interests involved in proscribing a brutal procedure,” according to the Catholic News Agency. The ruling also found that the state had legitimate grounds for enacting the law, to include “respect for fetal life,” “benefits to patients both physically and psychologically,” and “medical and societal ethics.”
Pro-life groups in Texas applauded the decision. “Texans celebrate today’s long-awaited victory,” said Texas Right to Life Director of Media and Communication Kimberlyn Schwartz, according to a statement in the AP. “Anyone can see the cruelty of dismemberment abortions, ripping a child’s body apart while her heart is still beating. We’re grateful the judges recognized this horror.”
“This ban is about cutting off abortion access, and nothing else,” said Amy Hagstrom Miller, president of Whole Woman’s Health, as reported by The Hill. “It should never be a crime for doctors to use their best medical judgment and follow the most current science. Texans deserve the best care available, and this law prevents that.”
The law does not ban second-trimester abortions, which is when abortionists typically commit D&E abortions — from about 13 to 25 weeks. Pro-life activists view banning the dismemberment of a living preborn child as an incremental step in the right direction. An abortionist has to perform a separate procedure to stop the baby’s heart — something that commonly happens in later abortions — ensuring the baby isn’t subject to what one judge called “being drawn and quartered” at a time when scientists argue babies can feel pain. As the ruling noted, “the record shows that doctors can safely perform D&Es and comply with SB 8 using methods that are already in widespread use.”
According to the Texas Tribune, opponents to the law have argued that digoxin fails to stop a baby’s heart between 5-10% of cases, and that doctors “can’t know” whether the baby has died until they begin the D&E, despite the fact that a doppler or ultrasound can detect a preborn baby’s heartbeat as early as five weeks.
“Texas is a national leader in protecting and fostering respect for human life, including unborn life. I will defend the state’s lawful authority to protect the dignity of unborn children by prohibiting these barbaric dismemberment abortions,” Texas Attorney General Ken Paxton said, according to a statement. “During the trial, we demonstrated that this law is constitutional and consistent with acceptable medical ethics.”
The nature of dismemberment abortion is “destructive and violent,” according to the very abortionists who carry them out. Though abortion is currently illegal in Texas after 22 weeks, the Texas Heartbeat Act goes into effect on September 1st and would restrict abortion to the first few weeks of pregnancy until an embryonic heartbeat can be detected.
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