Full 5th Circuit hears arguments on Texas law barring the dismemberment of living unborn babies

By Dave Andrusko

Back in December we updated our readers on the decision by the full 5th Circuit to rehear a decision by a divided three-judge panel striking down Texas’s ban on the dismemberment of living unborn babies.

Last Thursday, according to reporter Isaiah Mitchell, “the judges convened in a video conference to hear arguments from both sides of the case: Whole Woman’s Health v. Ken Paxton and the State of Texas

Mitchell quoted Kyle Hawkins, solicitor general for Texas who said

“It’s illegal to kill an animal in Texas by ripping it limb from limb. SB 8 extends that same protection and dignity to pain-capable unborn children on the cusp of viability. …

“SB 8 regulates only the moment of fetal demise. It simply requires those who commit abortions to kill the unborn child in a more humane way before tearing her arms and legs off.”

Whole Woman’s Health argued that the requirement was both unnecessary/constituted an “undue burden” and added additional risk to the woman, arguments debunked both at the December trial before the three judges and last Thursday. 

Mitchell reported

Under questioning, Whole Woman’s Health counsel Molly Duane failed to satisfy the judge’s requests to show what kind of impact the law’s enforcement would have on abortion access.

Judge Don Willett, who dissented from the Fifth Circuit’s original ruling against the law, pressed Duane to show how many abortion clinics would have to shut down if Texas were to enforce SB 8. The long, tense colloquy ended with no clear answer. …

[Texas Solicitor General] Hawkins noted that Whole Woman’s Health and other abortion clinics formerly called digoxin safe in their own literature but abruptly changed course “on the eve of litigation.”

“We’ve included in the record here the consent forms that the providers themselves give to their patients. These are consent forms asking the patients to consent to the use of digoxin to cause fetal demise prior to the D&E abortion. These consent forms say—and I’ll just quote from one—that digoxin makes the abortion process easier and safer,” Hawkins pointed out.

“So the abortion providers have been telling their patients that digoxin makes the abortion process easier and safer… Yet somehow the plaintiffs would have the court believe that when it comes to using digoxin to comply with SB 8, suddenly the procedure becomes risky and experimental.”

In a report filed last year, Kevin McGill of the Associated Press placed the case in a larger context of rethinking on the part of some appellate judges in other areas.

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.

Background

In his dissent Judge Willett decimated the conclusions reached by Judges Dennis and Stewart. His devastating critique [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 concluded 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.”