What the Latest Legal Challenge to a Texas Abortion Ban Says About a ‘Dangerous’ National Trend

Jennifer Gerson Uffalussy
Contributing Writer
Planned Parenthood and the Center for Reproductive Rights filed a lawsuit in a federal district court in Texas challenging the state’s attempts to restrict abortion access. (Photo: Getty Images)

The Center for Reproductive Rights and Planned Parenthood filed a new lawsuit in a federal district court in Texas on July 20, challenging one of the state’s latest attempts to further restrict access to abortion care.

The suit takes on Texas’s Senate Bill 8 (SB8), which was signed by Republican Governor Greg Abbott in June and is scheduled to take effect on Sept. 1. In addition to requiring the burial or cremation of embryonic and fetal tissue when a woman has a miscarriage management procedure, ectopic pregnancy surgery, or an abortion, SB8 also bans dilation and evacuation (D&E) procedures for abortion.

D&E is the most common and safest method of abortion in the second trimester, and the ban attempts to severely reduce the number of second-trimester abortions in the state, if not outright ban them all together.

This new suit underscores that D&E bans aren’t just an extreme piece of one-off legislation passed in one state but a momentum-gaining new trend when it comes to state legislatures working to restrict abortion access nationwide.

In 2015, Kansas and Oklahoma both passed D&E bans — both bans were challenged in state courts and are currently not in effect. In 2016, Alabama, Louisiana, Mississippi, and West Virginia all passed D&E bans too. While the Alabama and Louisiana laws have been challenged in federal court and are currently not in effect, the bans in Mississippi and West Virginia are in effect. In 2017, both Arkansas and Texas passed their own D&E bans. In Arkansas, the ban is not yet in effect and the judge hearing the case has not yet issued any order on whether enforcement of the law will be blocked while the case moves through the legal system. In Texas, SB8 is likewise not yet in effect yet, and because the legal filing just occurred on July 20, there has likewise not be any order from the judge on whether it will be enacted while legal proceedings continue.

In 2015, the American Congress of Obstetricians and Gynecologists released a statement on the new bans of D&E being passed, noting that D&E is the most common approach to abortion after 13 weeks and “is evidence-based and medically preferred because it results in the fewest complications for women compared to alternative procedures.”

The statement went on to call D&E bans “legislative interference at its worst: Doctors will be forced, by ill-advised, unscientifically motivated policy, to provide lesser care to patients. This is unacceptable.”

Furthermore, the American College of Obstetricians and Gynecologists has affirmed in a policy, which has been in place since 1993, that “induced abortion is an essential component of women’s health care. Like all medical matters, decisions regarding abortion should be made by patients in consultation with providers and without undue interference by outside parties. Like all patients, women seeking abortion are entitled to privacy, dignity, respect, and support.”

To best understand why anti-choice lawmakers in the states are introducing and passing D&E bans with mounting national momentum, you have to first take a look back to the 1990s, says Elizabeth Nash, the senior state issues manager for the Guttmacher Institute, a reproductive and sexual health research and policy group.

“This is pretty much taken from the playbook of the ’90s, when you saw the development of the bill to ban — and this is non-medical language — what is called by some a ‘partial-birth abortion,” Nash tells Yahoo Beauty. “The strategy was to ban a type of abortion but to really turn public opinion against abortion by using words to describe it that made abortion sound really unappealing.”

In 1995, Congress passed what is known as the Partial-Birth Abortion Ban for the first time, though the bill was ultimately vetoed by President Bill Clinton. Congress again passed the ban in 1997, when Clinton again vetoed it. The law was ultimately passed and signed into law by President George W. Bush in 2003 — at which point it was immediately challenged in the courts.

Nash continues, “We’re seeing a repeat of that strategy with bills designed to ban D&E abortion, which of course they use another term for. This is not a new tactic. It’s a very deliberate way to use language to try to change public opinion.”

She adds that another reason D&E bills are gaining traction in the states is because they specifically deal with abortion after the first trimester — and some voters are more likely to be less supportive of abortion access as a woman progresses in her pregnancy.

And Nash says to understand the significance of the legal challenge to SB8, one also must look to the history surrounding the federal partial-birth abortion ban.

“One of the reasons why the U.S. Supreme Court upheld the so-called federal Partial-Birth Abortion Ban was because the court said, ‘Well, there’s another procedure available.’ They were essentially saying that law could stand because patients still had the option of D&E abortion available to them,” Nash notes.

She adds, “After 12 weeks of pregnancy, we start to see the use of D&E as the primary method of abortion used in the second trimester. Should that be prohibited, we’re talking about making it very, very difficult to access certain kinds of services during pregnancy. Already, the number of [abortion] providers starts to decline in the second trimester, and so if you eliminate a method, you make it very hard to access services.”

When the D&E ban in Texas was first raised in the state legislature in February 2017, the Texas chapter of the American Congress of Obstetricians and Gynecologists sent a letter to the chairman and members of the Senate Health and Human Services Committee, voicing their strong opposition to the measure. In their letter, Texas-ACOG explained that they opposed the bill because it would “prevent physicians from offering the safest medical care possible to patients,” “would take decision-making away from women and their doctors and criminalizes physicians who perform a procedure that in many cases is necessary to protect a woman’s health or future fertility,” “causes a physician to compromise his or her medical judgment about what information or treatment is in the best interest of the patient,” and “criminalizes physicians and puts them in the unconscionable position of having to deny a woman the evidence-based, compassionate care that results in the fewest complications, which would have a chilling effect on the availability of medical care for women in our state.”

The Texas-ACOG letter also calls out that the ban offers no fetal health exception, no rape or incest exception, no mental health exception, and “does not use medical terminology and creates a dangerous environment for patients that would prevent doctors from having every option available when providing a patient with the best possible care in any given situation.”

Nash also explains that “one of the most obvious reasons” for the broader movement for restricting abortion access happening in state legislatures versus at the federal level is that abortion opponents have simply been less successful in their lobbying efforts there.

“Not that many abortion restrictions have been passed through Congress,” she says, noting that other than the Hyde Amendment and some other funding-related restrictions, no other federal restrictions have passed other than the Partial-Birth Abortion Ban.

“For decades, abortion opponents have looked to the states to get abortion restrictions passed, and state legislatures have been more receptive to adopting these kinds of restrictions, especially in the past six years. We have seen nearly 400 abortion restrictions enacted in the states between 2011 and 2017 — with that kind of track record, it makes sense for abortion opponents to keep looking to state legislatures,” Nash says.

In a statement given to Yahoo Beauty, Danielle Wells, a spokesperson for Planned Parenthood Federation of America, reiterates, “When politicians legislate bad medicine, it’s not only wrong, it’s dangerous. This law makes it illegal for doctors to provide care based on their medical expertise and what’s best for their patient. This ban is part of a coordinated national strategy by politicians to ban abortion step by step, law by law, and method by method, regardless of how many women it hurts. Each of us deserves the opportunity to control our lives at the most basic level — our bodies, our families, and our life’s path, including whether and when to become a parent.”

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