Federal appeals court strikes down Texas abortion ban, setting up Supreme Court challenge

Judges overturn 2017 law banning most common procedure in second trimester, in victory for abortion rights groups

Alex Woodward
New York
Wednesday 14 October 2020 01:49
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Amy Coney Barrett claims landmark abortion case is not a 'super-precedent' and not settled law

A federal appeals court  has struck down a Texas law banning the most common abortion procedure in the second trimester, a win for abortion rights groups that will most certainly be challenged by the state at the US Supreme Court.

In a two-to-one ruling among the three-judge panel, the Fifth Circuit Court of Appeals ruling argued that the ban “unduly burdens a woman’s constitutionally protected right” to obtain an abortion, while forcing care providers "to act contrary to their medical judgment [and] the best interest of their patient.”

The law effectively bans the evacuation and dilation procedure, the most common procedure, after the first trimester, effectively banning abortions in the state for women after 12 weeks; pregnancy awareness is roughly at five-and-a-half or more than six weeks.

Judges James Dennis and Carl Stewart, both appointed by former president Bill Clinton, ruled to strike the law, while Donald Trump’s appointee Don Willett dissented.

The ruling arrived as Senator Kamala Harris, the Democratic vice presidential candidate alongside Joe Biden to face Trump in November, grilled the president’s Supreme Court nominee Amy Coney Barrett on the future of US healthcare.

The case could be among more than a dozen abortion-related rulings to appeal to the nation’s high court.

State Attorney General Ken Paxton, a Republican, could also ask the full court to reconsider the ruling en banc.

Texas passed the law in 2017 but federal courts blocked it from taking effect, arguing that doctors would have to perform unproven and medically unnecessary methods to cause foetal demise before beginning a dilation and evacuation abortion.

Planned Parenthood and the Center for Reproductive Rights filed a lawsuit in 2017 on behalf of Whole Woman’s Health and other providers in the state.

The American Congress of Obstetricians and Gynecologists also argued that the dilation and evacuation method is “evidence-based and medically preferred because it results in the fewest complications for women compared to alternative procedures.”

“Efforts to ban specific types of procedures will limit the ability of physicians to provide women with the medically appropriate care they need, and will likely result in worsened outcomes and increased complications," the organisation has said. “These legislative efforts are based on non-medical, subjective language. This language will create confusion, thus putting women at risk and, in certain cases, actually leading to abortion later in pregnancy.”

Under the Texas law, doctors who violated the ban could face up to two years in prison.

“Today’s decision puts a stop to Texas’s strategy to ban one abortion procedure after another until it is all but inaccessible, ” said Nancy Northup, president and CEO of the Center for Reproductive Rights.

“Politicians should never decide what medical procedures a patient can and cannot receive," she said in a statement. "This ruling follows decades of Supreme Court precedent and the Fifth Circuit has joined every other federal court in striking down these types of bans.” 

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said with the ruling, “our physicians can continue to practise to the highest level of their training, and Texans will continue to benefit from their expertise. ”

The ruling arrives four months after the Supreme Court struck down a Louisiana law that would have closed all but one abortion health centre in the state. The high court struck down a similar Texas law in 2016.

Democrats fear that the confirmation of Judge Barrett – who has supported anti-abortion campaigns – could threaten the landmark decision in Roe v Wade, which provides constitutional protections for women’s healthcare, by tipping the body of the court to a conservative majority.

Healthcare advocates and abortion rights groups also fear that she could support the Trump administration’s challenge to dismantle the Affordable Care Act and jeopardise reproductive health coverage for millions of Americans.

“The Supreme Court’s vital role in protecting and upholding civil rights and liberties – including reproductive rights – cannot be compromised by a nominee fundamentally hostile to our constitutional rights," the Center for Reproductive Rights said in a statement announcing its opposition to the judge’s confirmation.

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