Federal Judge issues TRO on Texas Dismemberment Abortion Ban

By Dave Andrusko

Late Thursday, as anticipated, US. District Court Lee Yeakel of the Western District of Texas issued a temporary restraining order blocking Texas’ Dismemberment Abortion Ban while the full lawsuit brought by the abortion industry against the State of Texas moves forward.

The immediate effect is to block implementation of Senate Bill 8 for 14 days. Judge Yeakel will hold a September 14 hearing to decide whether to issue a preliminary injunction of the dismemberment ban which is part of a larger bill, Senate Bill 8. The dismemberment ban had been scheduled to go into effect today.

Pro-life Gov. Greg Abbott signed SB 8 into law on June 7, as NRL News Today reported. In addition to banning dismemberment abortions, Senate Bill 8 also prohibits partial-birth abortion and regulates the disposition of abortion victims.

Yeakel, a thorn in the side of any and all protective abortion legislation, wrote “The act leaves that woman and her physician with abortion procedures that are more complex, risky, expensive, difficult for many women to arrange, and often involve multi-day visits to physicians, and overnight hospital stays.”

Pro-abortionists lauded Yeakel’s decision.“Today’s ruling is the latest victory upholding a woman’s right to safe and legal abortion,” said Nancy Northup, president of the Center for Reproductive Rights.

Marc Rylander, a spokesman for Texas Attorney General Ken Paxton said, “Dismemberment abortions are gruesome and inhumane, which makes it troubling that a district court would block Texas’ lawful authority to protect the life of unborn children from such a barbaric practice.”

Texas Right to Life pointed out in its release last night

The abortion industry disingenuously argued in court that the Dismemberment Abortion Ban raises an undue burden for women seeking second trimester abortions by banning all D&E abortions. In filings and in court, the Texas Attorney General’s office powerfully argued SB 8 clearly only prohibits one specific type of D&E abortion, which the state Legislature defined as “Dismemberment Abortions.”

The abortion clinic lawyers are attempting to frame this lawsuit on how SB 8 will affect Texas women and the abortion industry. However the important question before the court is whether this type of procedure is something Texas has the right to prohibit. In the hearing over the temporary restraining order earlier this week, the attorney for the state opened his comments in court clarifying, “SB 8 is designed to do one thing: stop the brutal and gruesome procedure of living dismemberment abortions.”

The ban on dismemberment abortion is very specific. It forbids the use of an abortion “technique” that uses sharp metal clamps and scissors to crush, tear and pulverize living unborn human beings, to rip heads and legs off of tiny torsos until the defenseless child bleeds to death. Texas joined seven other states– Kansas, Oklahoma, West Virginia, Mississippi, Alabama, Arkansas, and Louisiana–in barring dismemberment abortion.

Various news accounts highlighted that “dismemberment abortion,” isn’t a medical term. But as National Right to Life has explained at length, it is a legal term of art similar to the partial-birth abortion. The Supreme Court upheld the federal ban on partial-birth abortions in 2007.

Moreover Justice Kennedy, in his dissent in a 2000 decision which invalidated Nebraska’s ban on partial- birth abortions, directly addressed the use of medical terminology to describe abortions [internal cites are omitted for clarity]:

The Court’s approach in this regard is revealed by its description of the abortion methods at issue, which the Court is correct to describe as “clinically cold or callous.” The majority views the procedures from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life. Words invoked by the majority, such as “transcervical procedures,” “[o]smotic dilators,” “instrumental disarticulation,” and “paracervical block,” may be accurate and are to some extent necessary, but for citizens who seek to know why laws on this subject have been enacted across the Nation, the words are insufficient. Repeated references to sources understandable only to a trained physician may obscure matters for persons not trained in medical terminology. Thus it seems necessary at the outset to set forth what may happen during an abortion. Stenberg v. Carhart 

Finally, as even the hyper-pro-abortion Texas Tribune observed, in Tuesday’s two-hour hearing before Judge Yeakel, Darren McCarty, a lawyer for Paxton,

questioned the timing of the lawsuit’s filing, and argued it was a strategy to force the court to “rubber stamp” emergency relief days before the ban was slated to go into effect. Yeakel, agreeing, said he could see no reason why the suit couldn’t have been filed as soon as the governor signed the bill into law, and said its timing was a “real imposition” and put “maximum pressure” on the court to act at the last minute.