Texas officials have asked the Fifth U.S. Court of Appeals to allow the state to enforce its ban on a certain type of second-trimester abortions, pending further court decisions.
The rule in question bars “dismemberment abortions,” known medically as “dilation and evacuation” abortions. The procedure uses forceps and other instruments to kill and remove the unborn baby from the womb. The Texas legislature declared the procedure “brutal and inhumane.”
While a panel at the New Orleans-based appellate court has already declined a motion to allow Texas to enforce the law, state officials are now asking the full appellate court to stay the decision. Republican-appointed judges outnumber Democratic-appointed judges on the court 12-5.
In June 2019, the U.S. Supreme Court declined to hear arguments on a similar ban in Alabama after a federal judge blocked that law. However, on Aug. 7, the 8th U.S. Circuit Court of Appeals lifted a lower court's order against enforcement of four Arkansas abortion restrictions, including the state's dismemberment abortion ban.
That ruling said the U.S. District Court must consider the law in light of Supreme Court Chief Justice John Roberts' June decision on a Louisiana law requiring abortion doctors to have admitting privileges at a nearby hospital.
Although the court struck down the Louisiana law, Chief Justice John Roberts in his concurring opinion also reaffirmed the right of states to create abortion regulations in order to further women’s health and safety, if they met certain standards in doing so. This has prompted speculation that other state abortion regulations may be able to withstand judicial scrutiny by citing the ruling.
A federal judge struck down the Texas law in 2017, but Texas officials appealed. Their appeal was first heard in November 2018, but the case was postponed until the Supreme Court could rule on the Louisiana law.
In 2017, Texas Right to Life said the dismemberment abortion ban is defensible under the 2007 U.S. Supreme Court ruling Gonzales v. Carhart, which says states have a “compelling interest in protecting the integrity and ethics of the medical profession and in protecting the life of the preborn child.”