Full 5th Circuit agrees to rehear decision striking down Texas’s ban on the dismemberment of living unborn babies

By Dave Andrusko

Writing Tuesday for the Associated Press, Kevin McGill reported that the  5th Circuit Court of Appeals has set January 21 as the day the full appeals court will rehear a ruling by a three-judge panel that struck down Texas’s ban on the dismemberment of living unborn babies 

[https://abcnews.go.com/Health/wireStory/appeals-court-rehear-texas-abortion-case-january-74611916].

On October 14, Judges James Dennis and Carl Stewart, both appointed by President Bill Clinton, argued the Dismemberment Abortion Ban imposed an “undue burden” on women. As we reported Judge Don Willett (appointed by President Trump) subsequently filed a dissent that was as powerful as it was scathing. 

McGill placed the announcement in a larger context.

Appellate judges in other areas also appear to think the issue might be ripe for another look. In August, the 8th U.S. Circuit Court of Appeals lifted a lower court order that had blocked four Arkansas abortion restrictions, including a ban on dilation and evacuation procedures. The 8th Circuit ruling said the U.S. District Judge in Arkansas needed to take another look at the issue in light of [Supreme Court Justice John] Roberts’ opinion in the Louisiana case.

And Kentucky’s attorney general recently went to the Supreme Court in hopes of reviving that state’s ban on the procedure, also citing Robert’s writing in the Louisiana case.

Elsewhere today, we posted a story of how a 20 state coalition of attorneys general had just filed an amicus brief in support of the appeal of Kentucky Attorney General Daniel Cameron.

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.

It was this decision the divided 6th Circuit panel upheld and which the full 6th Circuit will rehear in a little over a month.

The allusion in McGill’s story to Chief Justice Roberts’ concurring opinion in a prior case is very important.

When the 6th Circuit panel upheld Judge Yeakel’s decision overturning the Texas law, Shannon Najmabadi, writing for The Texas Tribune (as hard-core a pro-abortion publication as you will ever find) surprisingly offered an key explanation. 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 [panel] disagreed, with [Judge James] Dennis writing that the judges agreed the “balancing test still governs”

Judge Don Willett decimated the conclusions reached by Judges Dennis and Stewart. His devastating 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.”