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Appeals Court Upholds Texas Ban on Common Second-Trimester Abortion Procedure

A federal appeals court ruled Wednesday that Texas can ban the standard dilation and evacuation abortion procedure used in the second trimester of pregnancy. Texas will be the first state in the country to ban the procedure.

The 5th Circuit Court of Appeals ruled that a Texas law passed in 2017 banning D&E abortions could go into effect. This ruling reverses a lower court’s decision that the law was unconstitutional because it “imposes an undue burden on a large fraction of women” and “amounted to a ban on all D&E abortions.”

The dilation and evacuation procedure is widely regarded as one of the safest ways to terminate a pregnancy during the second trimester. The American College of Obstetricians and Gynecologists said in a statement that D&E is “the safest and medically preferred abortion procedure in the second trimester. D&E results in fewer medical complications than other abortion procedures, and often is necessary to preserve a woman’s health.”

The Texas law restricts dilation and evacuation abortions by requiring providers to stop a fetus’s heart before performing the D&E procedure. This added requirement is medically unnecessary during the pregnancy time frame outlined by the law, given that a fetus cannot feel pain until at least 24 weeks of gestation, according to the American College of Obstetricians and Gynecologists.

The methods used to stop a fetus’s heart are also invasive and can create health risks to the patient, including infection, uterine perforation, or cardiac arrest, according to Molly Duane, attorney for the Center for Reproductive Rights.

“This ban threatens the safety of my patients and punishes doctors for using our best medical judgement, training, and expertise,” said Dr. Bhavik Kumar, an abortion provider with Planned Parenthood Center for Choice, in a statement. “As a physician, I see the real-life consequences of these politically motivated restrictions. I know firsthand that any time health care is restricted, people suffer—and their families and communities are also irreparably harmed.”

In 2017, Judge Lee Yeakel of the U.S. District Court for the Western District ruled that the added procedure was medically unnecessary and that the law should not be upheld, writing that precedent “does not allow the imposition of an additional medical procedure on the standard D&E abortion—a procedure not driven by medical necessity.”

The additional procedure would amount to a total ban on D&E abortions. At least three abortion providers would no longer perform D&E abortions if they were first required to stop the fetus’s heart, given the substantial health risks this requirement imposes on the patient.

“This ban is about cutting off abortion access, and nothing else,” said Amy Hagstrom Miller, president of Whole Women’s Health, in a statement.

“In no other area of medicine would politicians consider preventing doctors from using a standard procedure. 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.”

“Texas has been hellbent on legislating abortion out of existence, and it is galling that a federal court would uphold a law that so clearly defies decades of Supreme Court precedent,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.

“There is no question that today’s decision will harm those who already face the greatest barriers to health care.”

Sources: New York Times 8/18/21; The Texas Tribune 8/18/21; The Hill 8/18/21; American College of Obstetricians and Gynecologists 11/14/19; American College of Obstetricians and Gynecologists 2021; Center for Reproductive Rights 8/18/21

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