A federal judge in Texas has extended his Aug. 31 stay of a new abortion law until Nov. 2 when a suit brought by Whole Women’s Health will be heard in court. The law, which bars the use of a technique called D&E—“dilation and evacuation”—was to take effect Sept. 1. There is little doubt the ruling will be appealed.
In his ruling, U.S. District Court Judge Lee Yeakel said that unless Roe v. Wade is overturned, he must follow the no “undue burden” standard when gauging the constitutionality of abortion laws. Imposing the law, Yeakel said, would force women to “suffer irreparable harm by being unable to access the most commonly used and safest” second-trimester abortion procedure. State and federal courts have blocked similar laws in five other states. While reproductive rights activists were happy about the ruling, they know this is just the beginning. Sophie Novack reported Aug. 31:
But this is the first battle in what is likely to be a long legal war. Yeakel wearily acknowledged as much on Tuesday, during a hearing on the temporary halt to the law. He called his court a “whistlestop on the train on the way to New Orleans, then on to Washington” for anti-abortion lawsuits, referring to the U.S. Fifth Circuit Court of Appeals and the U.S. Supreme Court.
There is a “constant never-ending stream of these cases and I think it will continue,” said a frustrated Yeakel about the new law, which would have gone into effect Friday. “It seems like the Legislature just jumps out and produces statutes, they’re signed by the governor, and then we start over here.”
Last year, in the seminal Whole Woman’s Health vs. Hellerstedt case, the Supreme Court shot down a Texas law requiring abortion clinics to be mini-hospitals and abortion-providing physicians to have admitting privileges at a nearby hospital, saying these restrictions placed an “undue burden” on women seeking to terminate their pregnancies. That was the first elaboration of what the vague “undue burden” standard actually means since the court’s 1992 ruling in Planned Parenthood vs. Casey.
But like their counterparts in several other states, Texas forced-birthers are relentless. And like those counterparts, they have eagerly depicted D&E as inhumane. As with the “partial birth abortion” campaign more than a decade ago, the forced-birthers have created a non-medical term—“dismemberment abortion”—to further their cause in as many states as they can get on board.
The gruesome name fulfills its role as incendiary propaganda. In fact, “dilation and evacuation” is used in 95 percent of second-trimester abortions, as well as some of those in the late first trimester. Nora Caplan-Bricker at Slate has pointed out that this method has been endorsed by the World Health Organization because it is widely seen as “the safest and simplest way to terminate a pregnancy after 12 weeks.” Under this method, the abortion provider dilates the cervix and employs surgical tools to remove fetal and placental tissue.
The forced-birthers openly say the attack on D&E is the next “pro-life conquest.” Novack noted: “The pro-life movement is ultimately set on overturning Roe v. Wade; you have to do that in court,” said John Seago, legislative director of Texas Right to Life, a forced-birther group aligned with the extremist House Freedom Caucus.
As Tara Culp-Ressler at ThinkProgress wrote in 2015, a ban on D&E would have a severe impact on abortion providers.
“This is a familiar tactic, similar to the other types of bans we’ve seen,” said Anne Davis, an OB-GYN and the consulting medical director for Physicians for Reproductive Health. “It seems the strategy is to take language that provokes emotional responses and then to argue that, because there’s an emotional reaction to something, it should be illegal.”
In his ruling, Yeakel said the Texas ban of D&E violates the “undue burden” mandate and would force women and doctors to use alternative methods that were “more complex, risky, expensive, difficult for many women to arrange, and often involve multi-day visits to physicians, and overnight hospital stays.”
