Advocates Mount Legal Challenge Against Texas Ban on Common Abortion Procedure

Whole Woman's Health sues Texas again, this time over a ban on so-called dismemberment abortions.

Pregnant people in Texas already have to navigate a forced 24-hour waiting period and an informed consent requirement that includes a mandatory ultrasound whether or not the patient wants one. Lauryn Gutierrez / Rewire

The Center for Reproductive Rights (CRR) and Planned Parenthood Federation of America (PPFA) filed a lawsuit in federal court Thursday challenging a Texas law that bans the most common second-trimester abortion procedure.

One of the plaintiffs in the lawsuit is Whole Woman’s Health, the abortion clinic that won one of the most important reproductive rights victories in decades last year when the U.S. Supreme Court ruled in Whole Woman’s Health v. Hellerstedt that two TRAP laws were an unconstitutional burden on a pregnant person’s right to safe and legal abortion care.

Several Planned Parenthood clinics and independent providers are also plaintiffs to the lawsuit.

The complaint seeks to block the provision of the Republican-backed SB 8, which criminalizes so-called dismemberment abortions. As the plaintiffs point out in their complaint, “dismemberment abortion” is not a medical term that physicians use or that appears in any medical literature. The definition of “dismemberment abortion” in the legislation describes a procedure known in the medical profession as a dilation and evacuation or D&E, which is a “safe and effective method in which a physician dilates the patient’s cervix and removes the fetus using forceps, clamps, or other surgical instruments.”

The plaintiffs allege that the ban violates their right to privacy as guaranteed by the Due Process clause of the 14th Amendment because it imposes an undue burden on patients seeking to terminate a pregnancy before viability.

Under Roe v. Wade, patients have a constitutional right to terminate a pregnancy before viability. Plaintiffs allege that a D&E procedure is the safest method of abortion after about 15 weeks of pregnancy, and that banning the procedure imposes an undue burden on a person seeking to terminate a pregnancy before viability.

Plaintiffs also allege that the ban violates patients’ due process right to bodily integrity by “forcing women to undergo additional, invasive, and potentially painful procedures to obtain a second-trimester abortion.”

Legislators in seven other states have enacted similar laws banning the D&E procedure. Courts have blocked the bans in Alabama, Kansas, and Oklahoma. Louisiana agreed to delay enforcement of its D&E ban while a lawsuit challenging it proceeds, and a court is expected to rule on a similar ban in Arkansas, after hearing oral arguments on the matter last week.

Major mainstream medical experts oppose D&E bans, according to a joint statement issued by CRR and PPFA. The American Congress of Obstetricians and Gynecologists has said that “these restrictions represent legislative interference at its worst: doctors will be forced, by ill-advised, unscientifically motivated policy, to provide lesser care to patients. This is unacceptable.”

Pregnant people in Texas already have to navigate a forced 24-hour waiting period and an informed consent requirement that includes a mandatory ultrasound whether or not the patient wants one. Two additional requirements—that doctors maintain admitting privileges at a local hospital and that all abortions, whether surgical or not, be performed in ambulatory surgical centerswere struck down by the Supreme Court in 2016 after it held in Whole Woman’s Health v. Hellerstedt that the burdens imposed by the restrictions outweighed the health and safety benefits that Texas lawmakers claimed to be advancing.

“This latest attack on abortion care in Texas with the passing of SB8, which bans D&E procedures, is an attempt to ban abortion and is evidence that politicians will stop at nothing in their crusade to make abortion out of reach for Texans,” Amy Hagstrom Miller, head of Whole Woman’s Health, said in a statement.

 “Texas lawmakers have once again compromised the health and safety of the women they were elected to represent in order to cater to anti-choice special interests and their extremist agenda,” said Nancy Northrup, president and CEO of CRR.

Whole Woman’s Health is also battling Texas over regulations that require the burial or cremation of fetal tissue from abortions, miscarriages, or ectopic pregnancy surgeries, and waiting for a court to rule on a $4.5 million fee request filed by Whole Woman’s Health’s lawyers against Texas, stemming from the state’s defeat last year in Whole Woman’s Health v. Hellerstedt.