Texas thoroughly debunks objections to its law banning the dismemberment of living unborn babies

By Dave Andrusko

When we last wrote about Senate Bill 8, the Texas law banning the  dismemberment of living unborn babies, the United States Court of Appeals for the Fifth Circuit in New Orleans had heard oral arguments regarding the  decision by a Federal District Court out of Austin to place an injunction on the law.

By way of background, as pro-life Texas Attorney General Ken Paxton wrote for the National Catholic Register, SB 8 had “passed the Texas Legislature with an overwhelming bipartisan majority and the backing of numerous medical professionals.” He added, “The district court’s tortured legal reasoning reveals a deeper incoherence in the 45-year-old so-called constitutional right to an abortion.”

Fast forward. According to Texas pro-lifers, the 5th Circuit panel asked the two parties involved to submit supplementary briefs (and replies to one another’s briefs) in light of the Supreme Court’s June 29th June Medical Services, L.L.C. v. Russo decision. As you recall, in a 5-4 decision, the Justices overturned the requirement that Louisiana abortionists have admitting privileges at a hospital within 30 miles of where they perform their abortions in case of emergency.

Here are three highlights, focusing on the State of Texas’ reply to Whole Women’s Health Supplemental Brief. (There are others but extremely technical in nature.)

First and perhaps foremost, “The district court did what June Medical’s controlling opinion forbade.” 

June Medical Services v. Russo confirms that the district court applied the wrong legal standard. The district court invalidated SB8 after balancing its benefits and burdens.  But June Medical set out a different test: It held that “[l]aws that do not pose a substantial obstacle to abortion access are permissible, so long as they are ‘reasonably related’ to a legitimate state interest.”Once the State shows a legitimate interest, “the only question for a court is whether the law has the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” There is no benefits-and-burdens balancing test.  (“Nothing about [the 1992 decision in] Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.”). The district court did what June Medical’s controlling opinion forbade, so the judgment below cannot stand.

Second, SB 8 is Constitutional. It places no obstacle to a woman’s access to abortion, let alone a substantial obstacle.

Texas may ban a barbaric abortion procedure so long as the ban does not place a substantial obstacle in the path of a woman’s access to abortion. As set out in Texas’s supplemental brief, SB8 places no obstacle whatsoever. It will not cause any abortion clinic to close, and it will not delay or

prevent any woman’s abortion. The record below—including plaintiffs’ own admissions—confirms that the alternatives to live-dismemberment abortion are available, safe, and effective. Gonzales and June Medical require judgment for the State.

Third, and finally, the State of Texas notes in its reply to Whole Women’s Health Supplemental Brief that

Plaintiffs claim that alternatives to live dismemberment are “substantial obstacle[s]” because they are “painful,” “unreliable,” and “involve additional medical risks.” 

But as the state immediately observes, “plaintiffs admitted the opposite below.”

That is, the alternatives are not painful (“a local anesthetic” is used); is not unreliable (“Plaintiff Dr. Wallace and a Planned Parenthood doctor admitted to a digoxin failure rate of 0%-2%”); and the “Plaintiffs themselves administer digoxin to ensure fetal demise.”

All the Texas law requires is that the baby not still be alive when the abortionist comes after her. It is a measure of how heartless the Abortion Industry is that they would oppose SB 8.

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