A much needed second look at the important court decision upholding Texas’ ban on the dismemberment of living unborn children

By Dave Andrusko

Last week NRL News Today celebrated a decision by the full 5th Circuit of Appeals to uphold a Texas law that bans the dismemberment of living unborn children. The vote was 9-5. (Three of the 17 judges recused themselves.)

The lead opinion, jointly written by Judges Jennifer Walker Elrod and Don Willett who were joined by five other judges, warrants additional follow-up beginning with the fact the 5th Circuit was the first federal appeals court to rule in favor of a law prohibiting the dismemberment of living unborn children.

By way of a quick two paragraph background, Senate Bill 8 (SB8) was signed into law by Texas Gov. Greg Abbott in May 2017. “Six abortion clinics and five individual doctors (‘plaintiffs’) filed suit arguing that SB8 imposes an undue burden on women seeking abortions in the second trimester of pregnancy,” according to  Tahira Mohamedbhai. “In November 2017, Judge Lee Yeakel agreed with the plaintiffs.”

Last October, in a split 2-1 decision, a fifth circuit panel upheld Judge Yeakel. Texas then appealed to the full fifth circuit, a request that was granted.

What else additional can be said about last week’s decision? Mohamedbhai writes

Circuit Judges Jennifer Walker Elrod and Don Willett wrote that the lower US District Court for the Western District of Texas committed numerous reversible legal and factual errors, applying the wrong test to assess SB8, and disregarding and misreading the Supreme Court precedents.

In a somewhat uncharacteristic move, the appellate court went further by vacating the permanent injunction granted by the district court and rendering its own decision stating that “remanding to the district court would be futile here because the record permits only one conclusion.”

That first paragraph is a very nice summary. The significance of the second paragraph is something I missed when I read, and then wrote, about the decision: the circuit did not remand the case back to Yeakel. Why would that be “futile??

“The plaintiffs have failed to carry their heavy burden of proving that SB8 would impose an undue burden on a large fraction of women,” which is the test when deciding whether an abortion law is facially [on its face] invalid. Indeed, Judges Elrod and Willett went so far as to accuse the district court of “bungling the large-fraction analysis.”

In addition, the court found

The district court concluded that SB8 amounts to a complete ban on “standard D&E” abortions. This conclusion rested on four errors—each of which independently compels reversal. 

For our purposes here—and as we look forward to future Supreme Court decisions—let’s consider two.

First, to quote Mohamedbhai’s excellent summary, the full court

stated that viewing SB8 through a “binary framework” wherein women receive abortions in the second trimester only through the live dismemberment type of D&E or not at all is “to accept a false dichotomy.” The court overturned the panel decision and held that there was sufficient evidence to indicate that “doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use.”

In other words, abortionists do not need to rip apart living unborn children.

Second, how Judge Yeakel was guilty of  “dismissing the State’s interests” in fetal life.

Despite Casey’s clear language, repeated in Gonzales, that the State has legitimate and substantial interests in fetal life throughout pregnancy, the district court dismissed the State’s interests as deserving “only marginal consideration” and “having primary application once the fetus is capable of living outside the womb.” What is more, the State asserted several interests in passing SB8 in addition to respect for fetal life—benefits to patients both physically and psychologically, medical and societal ethics, and informed consent for women seeking abortions. The Supreme Court accepted all of these interests in Gonzales. Yet the district court disregarded all of them here, contravening both Casey [1992] and Gonzales  [2007].

Southern Baptist public policy specialist Chelsea Sobolik told the Baptist Press, “Like all abortion procedures, this method is incredibly inhumane, and Texas is justified in prohibiting its use,” said Sobolik, acting director of public policy for the Ethics & Religious Liberty Commission. “It is always right and good when a law upholds the innate dignity and worth of preborn babies.”

She added in a statement, “As the pro-life movement continues chiseling away at the abortion industry and saving lives, churches must be ready to stand in the gap and care for vulnerable mothers facing unplanned pregnancies.”