November 22, 2017

Amy O’Donnell, Director of Communications
512-477-1244 Ext. 14


AUSTIN — United States Federal District Court Judge Lee Yeakel released his ruling today permanently striking down the portion of Senate Bill 8 (SB 8) that bans dismemberment abortions, in which a live unborn child in the second trimester is killed in the process of being dismembered using metal instruments. In Whole Woman’s Health v. Paxton, several abortion providers including Planned Parenthood sued to strike down that provision claiming that it effectively bans the most common method of abortion second-trimester abortion known as dilation and evacuation (D&E) abortions, which are performed thousands of times each year in Texas. Attorney General Ken Paxton defended the law and argued the State has an interest in advancing respect for the dignity of the life of the unborn.

The constitutional question centered around whether the burdens on the women from changes in the medical practice of D&E abortions would outweigh any benefit the State would be able to establish (such as a more humane method of death for the unborn child). Yeakel ruled the law violates Supreme Court precedent that prevents states from imposing significant barriers to abortion before viability. His opinion states “The State’s valid interest in promoting respect for the life of the unborn, although legitimate, is not sufficient to justify such a substantial obstacle to the constitutionally protected right of a woman to terminate a pregnancy before fetal viability.”

Members of Texas Alliance for Life’s (TAL) public policy team closely monitored the five-day trial in Austin. Although today’s ruling was not unexpected, it shows the limits that the federal courts have imposed on Texas’ ability to protect unborn babies from abortion in Texas.

“Texas Alliance for Life commends the stalwart and robust defense of the law by Texas Attorney General Ken Paxton’s team,” stated TAL Executive Director Joe Pojman, Ph.D. “However, U.S. Supreme Court precedent does not allow states to protect non-viable unborn babies from abortion, even when the methods entail dismembering the baby during the abortion. Most people find abortion by this method to be abhorrent. This court’s decision shows how out of step that precedent is with common human decency.”

The dismemberment ban had been scheduled to go into effect on September 1, 2017. Rather than have a trial on a preliminary injunction of the ban in September, plaintiff and defense attorneys agreed that the law would not be enforced via temporary restraining order until November 22, with a trial on the merits that began on November 2.

During the trial, the Paxton’s team repeatedly argued that the dismemberment ban should not be struck down — it neither prevents abortion nor increases the difficulty for women to obtain an abortion. While the law prevents dismembering a live child, the abortion doctor can perform abortions without violating the law by killing the child before the D&E abortion begins. Simply put, SB 8 does not ban D&E, it only regulates the timing of the child’s death. Killing the child before the D&E abortion begins, known as fetal demise, is preferable because it is more humane for the babies than death by dismemberment.

Both sides described three methods of fetal demise:

  • Potassium chloride (KCl) injection into the unborn child’s heart, causing “cardiac activity to cease”;
  • Digoxin (heart medication for adults) injection in the unborn child’s body or amniotic fluid, causing “cardiac activity to cease”; and
  • Umbilical cord transection in which the cord is sliced, causing the unborn child to bleed to death.

The State’s testimony centered around proving that all three methods are easily available to abortion doctors in Texas, that each is safe for the woman, and each is reliable for accomplishing fetal demise. Paxton’s team argued that providers in Texas already use digoxin, and others can be trained easily. This law only affects approximately 1% of all abortions in Texas (those occurring in the 17th week). Testimony also detailed KCl to be safe and effective to affect fetal demise prior to second-trimester abortion, as well as testimony with supporting literature stating that umbilical cord transection to be safe and effective for the pregnant woman. Finally, they argued that dismemberment is a painful death for the unborn child as the unborn child’s developing brain is physically capable of experiencing pain.

The plaintiffs, represented by the New York-based Center for Reproductive Rights, argued any method of killing the baby before the D&E begins is in all cases a medically unnecessary physical invasion (using a 4-inch needle for injections) and can be extremely difficult for some women with obesity or fibroids. They argued it can require a delay of 24 hours and an additional trip or an overnight stay near the abortion facility. No physician in Texas uses fetal demise prior to 18 weeks. Therefore, it is an untested procedure with unknown results before 18 weeks of pregnancy. The net effect will be increased cost, extra time, and increased risk to the mother, thereby creating an undue burden on her right to abortion. Their expert claimed unborn children feel no pain before birth.

Paxton has already appealed to the Fifth Circuit Court of Appeals.

“We will now continue to follow the next phase in the Fifth Circuit Court of Appeals. At that point, it is unclear how the justices will rule, depending in large part on the three-judge panel that is assigned the case,” said Pojman.

In the meantime, others provisions of SB 8, by Sen. Charles Schwertner (R-Georgetown) and Rep. Cindy Burkett (R-Sunnyvale), remain in effect, including the ban on partial-birth abortion, the sale or donation of tissues and organs obtained after abortion, and research on those tissues and organs.

# # #