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Judge temporarily halts Texas ban on common second-trimester abortion procedure

A federal judge on Thursday delayed for two weeks enforcement of part of a state law that bans the most common second-trimester abortion method.

A hallway at the Whole Woman's Health clinic in Austin.

A federal judge has temporarily stopped Texas officials from enforcing a ban on the most common second-trimester abortion procedure, just one day before the ban was set to go into effect.

Judge Lee Yeakel of the U.S. District Court for the Western District of Texas granted a temporary restraining order Thursday, delaying enforcement of the ban until Sept. 14. It was originally set to go into effect Sept. 1. 

Senate Bill 8, which passed during the 2017 regular legislative session, banned dilation and evacuation abortions — where doctors use surgical instruments to grasp and remove pieces of fetal tissue — unless the fetus is deceased.

Yeakel’s decision follows a Tuesday morning hearing during which attorneys for the state and reproductive rights groups sparred for an hour and a half about whether the order should be granted. With it in place, Texas doctors and health care providers can continue using the dilation and evacuation procedure – deemed the safest by medical professionals for second-trimester abortions — until a more permanent decision is made by the court.

Another hearing has been set for Sept. 14. 

Without Thursday's restraining order, Yeakel wrote in his decision, women and their doctors would be left "with abortion procedures that are more complex, risky, expensive, difficult for many women to arrange, and often involve multi-day visits to physicians, and overnight hospital stays." 

A spokesperson for the Texas Attorney General's office said in a statement that the state's top lawyer would "continue to defend our state's legal right to protect the basic human rights and dignity of the unborn."

Though the court’s decision Thursday offers a temporary respite to reproductive rights groups, it’s the latest in a series of legislative and legal challenges to abortion access in Texas. The lawsuit was filed in July by the Center for Reproductive Rights and Planned Parenthood on behalf of several women’s health providers in the state. 

Proponents of the ban have called dilation and evacuation “dismemberment abortion." In court Tuesday, Darren McCarty, an attorney for the state, said the procedure is "brutal, gruesome" and runs counter to the "ethos of a humane and civilized society." He said SB 8 does not ban the method; it just requires the "humane termination" of the fetus beforehand.

The “state did a good job of clarifying that technical distinction,” and spelling out its interest in protecting fetal life, John Seago, legislative director for Texas Right to Life, said after the hearing. 

Lawyers for the health providers countered that making fetal demise a prerequisite would subject women to medically unnecessary and untested methods, and force them to make additional trips to the clinic. Doctors would face criminal charges for violating the ban; the only exception would be in cases of medical emergency.

Already, women seeking an abortion in Texas must have a sonogram performed 24 hours before receiving an abortion, a requirement women's health advocates say is costly and burdensome.

"The provisions of SB 8 that we're challenging criminalize a safe and common method of abortion,” said Molly Duane, staff attorney at the Center for Reproductive Rights. "Politicians in Texas are trying to punish doctors who are using their best medical judgment.”

In court Tuesday, McCarty questioned the timing of the lawsuit's filing, and argued it was a strategy to force the court to "rubber stamp" emergency relief days before the ban was slated to go into effect. Yeakel, agreeing, said he could see no reason why the suit couldn’t have been filed as soon as the governor signed the bill into law, and said its timing was a "real imposition" and put "maximum pressure" on the court to act at the last minute.

Yeakel also asked repeatedly what evidence legislators had considered before passing the law, and how Texas' provision differs from similar bans that have been contested in other states. Laws like SB 8’s dilation and evacuation ban have been opposed or halted in Alabama, Arkansas, Kansas, Louisiana and Oklahoma, according to a press release from the center. In court Tuesday, neither side pointed to substantive differences between Texas’ law and these others.

Duane said the new law is part of a "coordinated strategy by the state of Texas and by states around the country to ban abortion method by method, one restriction at a time, until it's practically unavailable for women."

In May, state lawmakers tacked the dilation and evacuation ban onto SB 8, a broader abortion measure that also prohibits hospitals and clinics from donating aborted fetal tissue to medical researchers, and requires facilities to bury or cremate fetal remains whether from abortions, miscarriages or stillbirths.

Seago, whose organization championed the provision, noted it originated as a separate bill and was discussed extensively by lawmakers. “This is not something that the legislature unknowingly did in the dark of the night,” he said.

This lawsuit is hardly the first time the state’s abortion policies have wound up in court. In June 2016, the U.S. Supreme Court struck down parts of a Texas law that required abortion clinics to meet the same standards as ambulatory surgical centers — including minimum room sizes — and forced doctors performing the procedure to have admitting privileges at nearby hospitals. Days after the high court’s decision, the state put forth a new rule relating to how fetal remains are disposed of.

A federal judge blocked that fetal remains rule in January, noting that it had been proposed “before the ink on the Supreme Court’s opinion” was dry. A month later, that same judge said Texas can’t kick clinics affiliated with Planned Parenthood out of the state’s Medicaid program. The state is appealing both rulings.

Since the SB 8 lawsuit was filed in July, three new abortion-related measures were approved during the summer special legislative session and have been signed by the governor. Those new laws will increase reporting requirements for abortion complications, and require women to buy a supplemental insurance plan if they want coverage for an abortion – called a “rape insurance” policy by opponents.

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