Trump appointee offers brilliant critique of appeals court decision to overturn Texas’ ban on the dismemberment of living unborn children

By Dave Andrusko

We addressed this briefly last week but a decision by a divided 5th Circuit Court of Appeals panel to strike down Texas’s prohibition against the dismemberment of living unborn babies is surely worth a further look.

Especially so because even as I was writing this update, I learned that the dissenter in that case—Judge Don Willett—had, as promised, filed his dissent. More about that below. It is as fine a legal opinion as I have ever read. First, the background.

In 2017, Texas lawmakers passed Senate Bill 8 (SB8), which did no more than require that the unborn child’s heart is no longer beating when she is torn apart. Even this proved way too much for the abortion industry.

The law never took effect, thanks to U.S. District Judge Lee Yeakel of Austin, the go-to judge for the Abortion Industry. Represented by the Center for Repro­ductive Rights, abortion providers, including Whole Woman’s Health and Planned Parenthood, filed suit.

Obligingly, Judge Yeakel produced a 27-page opinion in he traveled hither and yon to tell us that the ban (an amendment to SB8 which passed overwhelmingly) is all but patently unconstitutional.

Surprisingly, writing for The Texas Tribune, as hard-core a pro-abortion publication as you will ever find, Shannon Najmabadi offered important context. The 2-1 decision, she wrote

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 [dismemberment] 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 [appeals] court disagreed, with [Judge James] Dennis writing that the judges agreed the “balancing test still governs”

These babies are well-developed. But reading stories such as Court House News we’re told that “doctors dilate a woman’s cervix and use instruments such as forceps to grasp and evacuate the fetal tissue.” Fetal tissue.

Or The Texas Tribune where Shannon Najmabadi writes that “doctors use surgical instruments to remove pieces of fetal tissue.” “Pieces of fetal tissue.”

The Texas Attorney General refused to buy the euphemisms.

“Live fetal dismemberment is an inhuman abortion procedure that literally tears apart a living, pain-capable child on the cusp of viability,” Texas Attorney General Ken Paxton said in a statement. “The Texas Legislature acted well within constitutional limits when it banned this barbaric practice. I will continue to defend the Legislature’s decision.”

Nor did Judge Willett in his immensely powerfully and moving dissent. I encourage you in the strongest possible terms to read it in its entirety. His brilliant dissent begins on page 23.

His argument can be summarized in two sentences which appear near the very end: “SB8 does not proscribe D&E [dismemberment abortions] ; it prescribes D&E that is marginally more humane. … The lone thing SB8 seeks to ban is a particular form of brutality: dismembering a living unborn child.”

At the very beginning, Judge Willett writes

The law is awash in coy euphemisms. The abortion-rights debate, and the attendant language wars, are emotionally charged, to be sure. But SB8 minces no words about what “dismemberment abortion” means for an unborn child’s final moments. For its part, the district court [Judge Yeakel] offered just nine words: “The evidence before the court is graphic and distasteful.” The panel majority follows a similar tack, camouflaging things in anodyne, sanitizing abstractions that conceal more than they reveal: “Because at 15 weeks LMP the fetus is larger than the dilated cervical opening, the fetal tissue usually separates as the physician moves it through the cervix, resulting in fetal demise.” This bit of linguistic sleight of hand is like saying “The Godfather” is about an immigrant who experiences bumps in the road while running the family olive oil business. Such cloudy vagueness deflects rather than describes. ..

Rhetoric must not befog reason. The majority uses gauzy, evasive language to minimize the reality of D&E and to maximize, but never quantify, the risks of various “fetal-demise” techniques. The majority then relies on this imprecision to evade exacting analysis. But without fully understanding the procedures at issue, one cannot fully understand the State’s asserted interest in reducing the barbarism of D&E on a living unborn child by requiring more humane alternatives—alternatives Plaintiffs have long used, and touted as safe, in their own provision of abortion services.

Judge Willett concludes by urging the full circuit court (“en banc”)

“to align our circuit’s abortion jurisprudence with controlling Supreme Court precedent that recognizes the validity of a State’s legitimate and substantial interest in valuing unborn life.”