Texas Ban on Standard Abortion Procedure Struck Down by Federal Appeals Court

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Fifth Circuit says a law prohibiting Texas doctors from using the standard abortion procedure after 15 weeks of pregnancy is unconstitutional
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In a victory for Texans, the U.S. 5th Circuit Court of Appeals today struck down a Texas measure that would have banned the standard method of abortion after approximately 15 weeks of pregnancy, known as D&E. This lawsuit was filed in 2017 by Whole Woman’s Health — which operates three health clinics in the state of Texas — several Planned Parenthood affiliates, and other Texas abortion providers, represented by the Center for Reproductive Rights, Planned Parenthood Federation of America, Morrison & Foerster, and Patrick J. O’Connell. 

In the decision, Judge James L Dennis wrote, “[This law] unduly burdens a woman’s constitutionally-protected right to obtain a previability abortion,” and that the law “also forces abortion providers to act contrary to their medical judgment and the best interest of their patient by conducting a medical procedure that delivers no benefit to the woman.”

Doctors who violate the ban would have faced up to two years in prison. Major medical organizations including the American College of Obstetricians and Gynecologists (ACOG) strongly oppose these types of abortion bans, noting, “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.” Courts have blocked similar bans in Alabama, Arkansas, Indiana, Kansas, Kentucky, Louisiana, and Oklahoma. Last year, the Supreme Court declined to review a lower court decision striking down a D&E ban in Alabama. 

“Today’s win is an important one for people not only in Texas but across the country,” said Amy Hagstrom Miller, President and CEO of Whole Woman’s Health. “Everyone deserves to benefit from advancements in medicine and from expert medical care, no matter where they live. With this victory, our physicians can continue to practice to the highest level of their training, and Texans will continue to benefit from their expertise. We are proud, once again, to lead the charge challenging bad laws and ensuring that all Texans get the healthcare they deserve.” 

“Today’s decision puts a stop to Texas’ strategy to ban one abortion procedure after another until it is all but inaccessible,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “Politicians should never decide what medical procedures a patient can and cannot receive. This ruling follows decades of Supreme Court precedent and the Fifth Circuit has joined every other federal court in striking down these types of bans.” 

“Today’s ruling should send a clear message to Gov. Abbott and AG Paxton that they will not be able to succeed in their cruel crusade to ban abortion. While we may have a victory today, the fight continues. Over the past year alone, Gov. Abbot and AG Paxton have used every tool at their disposal to hurt our patients, from bogus COVID-19 executive orders aimed at exploiting the pandemic to defending unconstitutional laws in the courts. It is all part of their strategy to restrict abortion access until it’s completely out of reach for millions of people,” said Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America. “Enough is enough, we’ll continue fighting this cruel ban in every way possible because our patients deserve nothing less.“

The decision comes four months after the Supreme Court struck down a medically unnecessary Louisiana law in June Medical Services v. Russo — a case brought by the Center for Reproductive Rights. If that law had been allowed to take effect, it would have closed all but one of the remaining health centers providing abortion in Louisiana. In 2016, the Supreme Court struck down an identical law in Texas that shuttered half the abortion clinics in the state in Whole Woman’s Health v. Hellerstedt. The Supreme Court ordered the state of Texas to pay $2.3 million in attorney's fees for that case. 

“Today’s ruling means that my colleagues and I can continue to provide the highest quality medical care for our patients. The state’s attempt to interfere in private, deeply personal health care decisions by banning the most common method of abortion at this stage of pregnancy would have put patients in danger and punished doctors for using our best medical judgment, training, and expertise,” said Dr. Bhavik Kumar, abortion care provider, Planned Parenthood Center for Choice (serves Houston and southeast Texas). “Unfortunately, extremist politicians’ ongoing attempts to restrict access to abortion — method by method, state by state — until it is completely out of reach are all too familiar to physicians like myself. Thankfully, the court today affirmed what we have always known: that private medical decisions should stay between patients and the doctors they trust with their health care.”

Just six months ago, Gov. Greg Abbott and Attorney General Ken Paxton successfully exploited the COVID-19 pandemic to temporarily ban abortion in Texas for approximately one month. While the abortion ban was in effect, patients were forced to travel hundreds of miles to access the care they needed.

Since 2011, state politicians have passed more than 480 restrictions on abortion. Texas already has many onerous  laws and regulations that make it harder for Texans to access abortion, including state-mandated biased counseling, a two-trip requirement and mandatory 24-hour delay in care, a ban on the use of telemedicine to provide medication abortion, a parental consent and notification law, and many more.

This lawsuit challenging Texas’ ban on D&E procedures was filed in 2017 in the U.S. District Court for the Western District of Texas on behalf of Whole Woman’s Health, Planned Parenthood Center for Choice, Planned Parenthood of Greater Texas Surgical Health Services, Planned Parenthood South Texas Surgical Center, Alamo Women’s Reproductive Services, Southwestern Women’s Surgery Center, and several individual physicians. The plaintiffs are represented by the Center for Reproductive Rights, Planned Parenthood Federation of America, Morrison & Foerster who is serving as pro-bono counsel, and Austin attorney Patrick J. O’Connell.   

Case: Whole Woman's Health v. Paxton

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MEDIA CONTACTS: 

Whole Woman’s Health: Jessica Shein; jshein@wholewomanshealth.com; 512-800-2338

Center for Reproductive Rights: Kelly Krause; kkrause@reprorights.org; 917-637-3649   

Planned Parenthood Federation of America: media.office@ppfa.org; 212-261-4433