UPDATE: On October 30, the full Fifth Circuit Court of Appeals announced that on its own initiative it has decided to review this case, thus vacating the October 13 ruling by a three-judge panel of the Court striking down the Texas law, as reported below.
The Center for Reproductive Rights and its partners secured a victory for the people of Texas yesterday when the U.S. Fifth Circuit Court of Appeals struck down a state law that banned the standard procedure for abortion care after approximately 15 weeks of pregnancy. The ban would have interfered with doctors' best medical judgment on how to treat their patients.
“Politicians should never decide what medical procedures a patient can and cannot receive,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “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.” The decision strikes a blow against Texas’s strategy of banning abortion one procedure at a time.
The case, Whole Woman’s Health v. Paxton, was brought on behalf of Whole Woman’s Health and other Texas abortion providers by the Center, Planned Parenthood Federation of America, Morrison & Foerster, and Patrick J. O’Connell.
Banning the Standard of Care
The Texas restriction would have interfered with doctors’ ability to use their best medical judgment. The law banned the dilation and evacuation (D&E) procedure, which is the standard of abortion care after approximately 15 weeks of pregnancy. Doctors who violated 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 bans. ACOG noted 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.”
“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.”
About the Case
After the Texas law was challenged in 2017, the federal district court in Texas struck it down as unconstitutional. Texas appealed the decision to the Fifth Circuit Court of Appeals, which delayed its ruling pending the U.S. Supreme Court’s decision in June Medical Services v. Russo, another Center case. In June 2020, the Supreme Court issued its ruling in that case, striking down a different Louisiana abortion restriction.
The Texas decision notes that the state's ban falls afoul of the undue burden standard, the legal test most recently affirmed by the Supreme Court in June Medical. Judge James L. Dennis, writing for the Court, accordingly weighed the law’s “significant burdens upon female patients against its nonexistent health benefits.” The Court further wrote that “[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.”
The decision is consistent with rulings in other states. Similar laws are not being fully enforced or have been blocked by courts in Alabama, Arkansas, Indiana, Kansas, Kentucky, Louisiana, and Oklahoma, and last year, the Supreme Court declined to review a lower court decision striking down a similar ban in Alabama.
Recent Center lawsuits have blocked other state abortion restrictions, including, in July, abortion bans beginning at six weeks of pregnancy in Georgia and Tennessee, and, in September, a medication abortion “reversal” law in Tennessee.
Texas Already Hostile to Abortion Access
Texas is already one of the nation’s most hostile states for people seeking abortion care. The state imposes a slew of abortion restrictions, 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 ban on insurance coverage for abortion, a parental consent and notification law, and many more. Texas also has one of the country’s highest maternal mortality rates.
Earlier this year, Governor Greg Abbott and Attorney General Ken Paxton 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 across state lines to access the care they needed.
The Texas abortion ban thrown out in yesterday's ruling is part of an ongoing nationwide effort to legislate abortion out of existence. State politicians have passed more than 450 restrictions since 2011, including 22 in Texas. These harmful restrictions reduce access to care and harm marginalized communities the most, including people of color, young people, people living in poverty, and those living in rural areas.
Details about abortion restrictions in Texas can be found on the Center’s “What if Roe Fell?” digital tool that maps out each state’s abortion policies.