In Whole Woman's Health v. Paxton, (5th Cir., Aug. 18, 2021), the U.S. 5th Circuit Court of Appeals, sitting en banc, by a vote of 9-5 (with 3 judges recused), upheld a Texas law enacted in 2017 that bans abortions performed through the standard dilation and evacuation procedure-- a procedure that the Texas law terms "dismemberment abortions." The majority opinion joined by 7 of the 9 judges said in part:
SB8 refers to the prohibited method as "live dismemberment" because doctors use forceps to separate, terminate, and remove the fetus. SB8 requires doctors to use alternative fetal-death methods. The district court declared SB8 facially unconstitutional. It held that SB8 imposes an undue burden on a large fraction of women, primarily because it determined that SB8 amounted to a ban on all D&E abortions.... Instead, the record shows that doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use.....
The safety, efficacy, and availability of suction to achieve fetal death during abortions in weeks 15 and 16 combined with the safety, efficacy, and availability of digoxin to do the same in weeks 18–22 mean that the plaintiffs have utterly failed to carry their heavy burden of showing that SB8 imposes an undue burden on a large fraction of women in the relevant circumstances.
Chief Judge Owen and Judge Ho each filed a concurring opinion. Judge Dennis filed a dissenting opinion that was joined by Judges Stewart and Graves, saying in part:
Today, in a Sisyphean return to form, our court upholds a Texas law that, under the guise of regulation, makes it a felony to perform the most common and safe abortion procedure employed during the second trimester. In an opinion that fortunately lacks fully binding precedential effect, the en banc plurality disregards the two major lessons of June Medical. First, it ignores on-point Supreme Court precedent in multiple ways.... [T]he Supreme Court has already decided this exact case, holding that a Nebraska law was unconstitutional because it could be interpreted to be the sort of ban that the Texas statute openly embodies.... Second, ... the en banc plurality fails to defer to the district court’s well-reasoned and well-supported factual findings regarding the burdens and benefits associated with the Texas law...
Judge Higginson filed a separate dissenting opinion, joined by Judge Costa. Texas Tribune reports on the decision.
