Divided 5th Circuit Court of Appeals panel rules against Texas ban on Dismemberment Abortions

State has 14 days to ask full 5th Circuit to hear case

By Dave Andrusko

Texas Right to Life responded yesterday to the 2-1 decision:

The United States Court of Appeals for the Fifth Circuit ruled against the Texas Dismemberment Abortion Ban, upholding the district court ruling that blocked enforcement of the Pro-Life law. After a three-year wait, the decision by the three-judge panel is disappointing and demonstrates the need for judges who follow the strictest interpretation of the Constitution. However, Texas must continue the legal battle to force a federal circuit court split, pressuring the Supreme Court of the United States to evaluate the merits of the law.

As NRL News Today has explained, the law, passed in 2017, was never allowed to take effect. U.S. District Judge Lee Yeakel of Austin is as reliable a buttress as any pro-abortionist could possibly desire. In his 27 page opinion, Judge Yeakel traveled hither and yon to tell us that the ban (an amendment to Senate Bill 8 which passed overwhelmingly) is all but patently unconstitutional

In fact, the ban does no more than require that the unborn child’s heart is no longer beating when she is torn apart. Even this the abortion industry found unacceptable.

Not so the Texas legislature (or eight others), or Texas Attorney General Ken Paxton. No just society should tolerate the tearing of living human beings to pieces,” Paxton has said, adding that the law “treats the unborn with dignity and respect and protects the integrity of the medical profession.” 

Here is more from Texas Right to Life

After the Supreme Court’s ruling in June Medical Services v. Russo this summer, Judges Dennis and Stewart, both appointed by Clinton, argued the Dismemberment Abortion Ban imposed an “undue burden” on women. Conversely, Judge Willett found the arguments promoted by the abortion industry unpersuasive. He will soon file his dissenting opinion. …

The district court and three-judge panel failed to answer the case’s dynamic legal question: Is a dismemberment abortion inhumane enough to warrant legal prohibition?  

The pro-abortion-to-the-bone Texas Tribune nonetheless highlighted the context that surrounded the divided panel’s decision. Shannon Najmabadi writes

Tuesday’s decision comes after the 8th U.S. Circuit Court of Appeals lifted a block on four Arkansas abortion restrictions in August, citing Chief Justice John Roberts’ opinion in the recent Supreme Court case June Medical Services v. Russo. While Roberts’ crucial vote in that case awarded a victory to advocates of abortion access then, he issued a narrow opinion that said lawmakers have wide discretion “in areas where there is medical and scientific uncertainty” and that weighing the “costs and benefits of an abortion regulation” was not necessarily a job for the courts.

Lawyers representing Texas argued this presents a different standard than was applied by the district court that struck down the dilation and evacuation restriction in 2017. In that ruling, the burdens of the law were weighed in relation to its benefits —a balancing test rejected by the June Medical decision, the state’s lawyers wrote.

“The Chief Justice demonstrated that is it not enough to show merely that a law imposes some ‘burden’ on abortion access, or that a regulation makes abortion more difficult or expensive. … Rather, ‘the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non viable fetus,’” the state’s lawyers wrote, citing Roberts’ opinion.

The court disagreed, with Dennis writing that the judges agreed the “balancing test still governs.”

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