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Whole Woman’s Health v. Paxton

The Center for Reproductive Rights and Planned Parenthood Federation of America filed a lawsuit on behalf a group of abortion providers challenging the provisions of a Texas law, SB 8, that ban so-called “dismemberment abortion.” Although this is not a medical term that physicians use or that appears in any medical literature, Plaintiffs note that the definition of “dismemberment abortion” in the statute prohibits a procedure that medical professionals call “dilation and evacuation” or “D & E.” Plaintiffs allege that D & E, which can be performed in an outpatient setting, is the safest and most common method of abortion after approximately 15 weeks of pregnancy.

Plaintiffs allege in their Complaint that the D & E ban is the latest in a long line of attempts by Texas Republicans to restrict abortion access:

S.B. 8 is the latest in a long string of attempts by Texas to place burdensome, medically unnecessary restrictions on women’s access to abortion. In 2003, Texas instituted a 24-hour mandatory delay between a woman providing informed consent for an abortion and her obtaining the procedure. In 2011, Texas amended its informed consent requirements regarding abortion to include a mandatory ultrasound at least 24 hours before the procedure (or two hours for patients who live at leave 100 miles from the nearest licensed abortion facility). In June of 2016, the United States Supreme Court [in Whole Woman’s Health v. Hellerstedt] struck down two provisions of another Texas antiabortion law, because the burdens imposed by the restrictions outweighed any benefits the requirements advanced. Just four days after the Supreme Court issued its decision, the Texas Department of State Health Services published proposed regulations eliminating the typical, medically appropriate methods of disposal for embryonic and fetal tissue, and instead requiring healthcare facilities to dispose of all such tissue from abortion and miscarriage by burial or cremation. This court granted a preliminary injunction blocking the amendments from taking effect, noting that
the circumstances suggested that “the actual purpose of the Amendments is to limit abortion access in Texas.”

Plaintiffs allege that the D & E ban violates their patients’ right to liberty and privacy as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution because it imposes an undue burden on women seeking to terminate a pregnancy before viability.

They also allege that the ban violates their patients’ right to bodily integrity as guaranteed by the Due Process Clause because it forces women to undergo additional, invasive, and potentially painful procedures to obtain a second-trimester abortion or continue a pregnancy.


On August 31, 2017, U.S. District Court Judge Lee Yeakel issued a temporary restraining order blocking enforcement of the act. On November 22, Judge Yeakel permanently blocked enforcement of the act on the basis that the ban results in an undue burden upon a woman’s right to have an abortion and are therefore unconstitutional.

On October 13, 2020, the 5th U.S. Circuit Court of Appeals struck down the 2017 law 2-1, finding that the law does not confer a medical benefit for women and instead imposes an impermissible burden to “endure a medically unnecessary and invasive additional procedure.”