Bad news out of the federal courts: On Wednesday, the Fifth Circuit Court of Appeals upheld a Texas ban on the method of abortion most commonly used after 15 weeks’ gestation: dilation and evacuation (D&E).
The Texas law is effectively a 15-week pre-viability abortion ban. And you know what we say about those kinds of bans: They’re unconstitutional! But the Fifth Circuit ignored the Constitution and upheld the Texas law anyway.
“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,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.
In a rambling 109-page opinion that used inflammatory and misleading language, including the term “live dismemberment” to describe a D&E, the court upheld a law that would send doctors to prison for up to two years.
Roe has collapsed and Texas is in chaos.
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“This ban is about cutting off abortion access. … In no other area of medicine would politicians consider preventing docs from using a standard procedure. It should never be a crime for doctors to use their best medical judgment,” said Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health, a plaintiff in the case.
This decision is a huge deal, as it’s the first time a federal court of appeals has upheld a pre-viability abortion ban. Ever. That means the law around abortion rights and access is already changing in real time.
The Supreme Court is the only court that can undo this decision now.
Speaking of the Supreme Court, all eyes are on the Court, which will hear the most consequential abortion case since Roe v. Wade next term. That case happens to involve—wait for it—a 15-week ban similar to the law just upheld.
It’s important to remember that Trump and other conservatives not only created an anti-abortion supermajority on the Supreme Court, but they stacked the lower courts too.
In fact, six judges on the Fifth Circuit are Trump judges.
Just last year, a three-judge panel of the Fifth Circuit struck down the exact same ban. But the other judges didn’t like that, so they decided on their own to rehear the case. This highly unusual move was a big red flag for abortion rights. The legal landscape is not the same as it was last year, and for abortion, it’s markedly worse.
This case proves that conservative judges are no longer waiting around for a Supreme Court decision to start gutting abortion access—they’re going to start chipping away at access with the power they already have. And it’s a lot of power!
Wednesday’s decision is the first time a federal court upheld a ban on gestational limitations. In a sort of chain reaction from hell, this will undoubtedly open the doors for other challenges to gestational limits in other states—including, most critically, Mississippi.
Mississippi will no doubt use this case to argue in Dobbs v. Jackson’s Women’s Health that the Supreme Court should uphold the state’s 15-week ban.
It could immediately impact access in Louisiana, which also has a 15-week abortion ban just waiting to be enforced if the Supreme Court lets the Mississippi law stand. The dominoes have started to fall.
Typically, when it comes to these types of cases, precedent controls. It means that judges don’t like to be the first to radically change the legal landscape on an issue. But that dynamic is shifting, and judges are getting bolder in their anti-abortion rulings.
This post was adapted from a Twitter thread.