Dilation and Evacuation Bans

Often referred to as “dismemberment abortion bans,” a nonmedical term, these laws seek to ban the most commonly used method of ending a pregnancy during the second trimester.

Many of these laws define dismemberment abortion as “the purpose of causing the death of an unborn child, to purposely dismember a living unborn child and extract him or her one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps a portion of the unborn child’s body to cut or rip it off.”

In reality, dilation and evacuation 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 tactic of redefining an abortion procedure with a non-medical term is not new. Anti-choice activists successfully employed the same strategy in the 1990s when the National Right to Life Committee (NRLC) coined the term “partial-birth abortion” in an effort to ban intact dilation and extraction abortions. The procedure, an uncommon method used after the first trimester, was ultimately banned by Congress and the Supreme Court.

According to the American Congress of Obstetricians and Gynecologists, (ACOG) an abortion using suction aspiration can be performed up to 14 weeks’ gestation, but after 14 weeks the dilation and evacuation (D and E) procedure must be used to perform an abortion. As such, D and E bans, depending upon their language, may ban all surgical abortion past 14 weeks’ gestation.

ACOG opposes this ban, and has stated 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.”

Examples of Dilation and Evacuation Bans (Last Updated August 14, 2020)

Dilation and evacuation bans come in different forms with varying exceptions. The most popular legislative model banning the D and E abortion method is the “Unborn Child Protection from Dismemberment Abortion Act,” based on model legislation drafted by the NRLC.

Dilation and evacuation bans have been signed in ten states: Alabama, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Ohio, Oklahoma, Texas, and West Virginia. Laws banning D and E procedures have been blocked or temporarily enjoined in seven states: Alabama, Arkansas, Kansas, Kentucky, Louisiana, Oklahoma, and Texas.

On April 7, 2015, Kansas Gov. Brownback signed SB 95, the first D and E ban to be enacted in the United States. The law prohibits a person from performing, or attempting to perform, a “dismemberment abortion” unless it is necessary to save the life of the patient or the continuation of the pregnancy will cause a substantial and irreversible physical impairment of a major bodily function of the pregnant patient. The Center for Reproductive Rights filed a complaint challenging the law. The district court blocked the legislation, pending resolution of the lawsuit.

That same year, Oklahoma enacted its own D and E ban, HB 1721. The law prohibits a person from performing or attempting to perform a “dismemberment abortion” unless it is necessary to prevent serious health risk to the pregnant patient. On October 14, 2015, an Oklahoma state court judge issued a temporary injunction in a lawsuit challenging the ban.

In 2016, Alabama, Louisiana, Mississippi, and West Virginia all enacted D and E bans. Each law prohibits a person from performing or attempting to perform a “dismemberment abortion” unless it is necessary to prevent a serious health risk to the patient. While the bans in Mississippi and West Virginia remain current and in effect, the law in Alabama was ruled unconstitutional and blocked. In Louisiana, the Center for Reproductive Rights filed a lawsuit challenging the ban on dilation and evacuation procedures, along with six other abortion restrictions that were enacted. With the case pending, the state agreed to delay enforcement of all restrictions.

Arkansas became the first state to pass a D and E ban for the 2017 legislative session. HB 1032 bans “dismemberment abortions” unless it is necessary to prevent a serious health risk to the patient. A U.S. District Court Judge issued a preliminary injunction in late July, blocking the state from enforcing the law.

In June 2017, Texas Gov. Greg Abbott (R) signed an omnibus bill containing a D and E ban. A group of abortion providers led by Whole Woman’s Health is challenging the ban in federal court. A U.S. District Court Judge issued a permanent injunction on November 22, 2017, blocking the state from enforcing the ban.

On April 10, 2018, Kentucky Gov. Matt Bevin (R) signed HB 454, which prohibits dilation and evacuation procedures when the probable post-fertilization age of the fetus is eleven weeks or greater. The ACLU filed a lawsuit on behalf of abortion providers on April 22, 2018, challenging the law. The state of Kentucky agreed to stop enforcement of the law while the case proceeds. 

On December 21, 2018, Ohio Gov. John Kasich (R) signed SB 145, which prohibits dilation and evacuation procedures when the abortion isn’t necessary to preserve the life or physical health of the pregnant person.

On August 14, 2020, Nebraska Gov. Pete Ricketts (R) signed LB 814 , which prohibits dilation and evacuation procedures using clamps, forceps, other comparable instruments. The procedure is only permitted in medical emergencies.

Laws