Right Positions D&E Bill as the Next Big Challenge to Roe

About Robin Marty

Both anti-abortion and pro-choice advocates rally in front of the Supreme Court during the Whole Woman’s Health v. Hellerstedt case in June 2016. A lawsuit challenging Texas’s new ban on Dilation and Evacuation is likely to follow the same legal path to the Supreme Court. Photo: Victoria Pickering via Flickr.

On November 2, federal Judge Lee Yeakel began hearing arguments in Whole Woman’s Health v. Paxton, a lawsuit challenging Texas’s new ban on Dilation and Evacuation (D&E) abortions. Yeakel’s hearing is just the first step in a process that is likely to mirror much of the same legal path to the Supreme Court as Texas’s last major abortion case, Whole Woman’s Health v. Hellerstedt. And it could potentially leave thousands of pregnant people across the U.S. in rural and red states unable to access the safest means of terminating a pregnancy after 14 weeks, or in some cases accessing an abortion at all.

Since 2010 anti-abortion legal and political action groups such as Americans United for Life [AUL] and National Right to Life Committee [NRLC] have successfully introduced model legislation on a state-by-state basis throughout the U.S. Their goal? To whittle down abortion access bit by bit on a regional basis while at the same time provoking court challenges that could eventually make it to the Supreme Court and potentially overturn Roe v. Wade.

The 2010 midterm Republican sweep in state legislatures created the perfect opportunity for a course change in ending legal abortion. While a small portion of the anti-abortion movement continued to pursue total abortion bans, the majority moved into a state-based, incremental approach throttling the ability to obtain an abortion through mandatory waiting periods, clinic closures in response to medically unnecessary licensing rules, blocking of telemed abortion procedures and limits on how medication abortions could be performed. Together, the new laws were intended to place so many roadblocks to a legal termination that abortion would become inaccessible for many despite remaining technically legal in practice. Then when those laws would be challenged in multiple states, they would yield the lower court rulings needed to have a case heard by the Supreme Court.

Although the most recent attempt was unsuccessful, it is just the first of many to follow this pattern. Now, abortion opponents expect a D&E ban to accomplish what mandatory admitting privileges and clinic regulations could not: an opening to reexamine Roe and reevaluate whether each state should be required to have legal, accessible abortion until the point of fetal viability.

While Hellerstedt was based on the idea of “protecting women” by making clinics and abortions safer, even if the actual effects of those “protections” would close clinics all together, Paxton focuses on the fetus and what the procedure does to a “live” being. The law ignores the patient altogether in favor of a legal argument upholding the state’s alleged interest in promoting pregnancy and birth, treating the fetus as a living person with rights and dignity that must be protected.

Paxton focuses on the fetus and what the procedure does to a “live” being. The law ignores the patient altogether in favor of a legal argument upholding the state’s alleged interest in promoting pregnancy and birth.

“S.B. 8 prohibits dismemberment abortion because it involves the limb-by-limb destruction of a living unborn child, and our society has long recognized dismemberment of living beings as particularly cruel,” Texas Attorney General Ken Paxton writes in his legal briefings. Bill supporters also claim that that the ban would “promot[e] integrity and ethics of the medical profession.” The health, safety, rights or even existence of the lives of pregnant people—the entire justification for the abortion restrictions in Hellerstedt—remain virtually unmentioned in both bills and supporting legal briefs.

The erasure of the effects on those having the abortion is deliberate, especially since the crux of the state’s argument is that this is in fact not a blanket abortion ban at all. Like its predecessor, the intact D&E ban, a D&E can still be performed, they claim, as long as providers have verified that the fetal heartbeat has been stopped prior to the procedure. In essence, this applies the same restrictions as before, but for abortions performed far before the point of viability. Abortion opponents suggest that the use of an injection to stop the heartbeat can be used prior to the abortion itself, satisfying the state’s desire to protect the “dignity” of the unborn while allowing a pregnant person to still receive an abortion. The state brushes aside concerns that an injection—which is already typically used in most later abortions performed close to or past the point of viability—is more difficult to do in smaller, pre-viable fetuses, raising the risk of harm to pregnant patients without adding any benefit other than to assuage the whims of those who oppose abortion.

It will also increase the wait-time before patients can obtain an abortion, by requiring a second ultrasound to confirm there is no heartbeat. “Doing an injection to ensure fetal demise could add another day to the abortion, when patients are already waiting to schedule, then having an initial mandatory ultrasound and waiting 24 hours before the procedure, then returning again to actually have it,” Amy Hagstrom Miller, President and CEO of Whole Woman’s Health, the plaintiffs in the Texas case, told PRA. “These are people who often are already struggling to jump through the hoops to terminate. This just adds one more unnecessary barrier to their ordeal, and one that has no medical benefit.”

When the case inevitably makes it to the Supreme Court, the question will be exactly how much physical effort, financial burden and even medical risk a patient should be reasonably expected to bear in order to protect the “dignity” of a fetus. If the court finds these new requirements constitutional, its decision won’t just affect Texas, but the seven other Southern or Midwest states that currently have their own laws enjoined, creating a block of states patients would need to leave in order to obtain a 15- to 20-week abortion without a multi-day procedure.

That would be a best-case scenario. A positive Supreme Court ruling could also inspire similar federal legislation which, depending on the make-up of Congress and the White House at that time, could mean every state in the nation would eventually be affected, severely restricting, if not eliminating, the ability to access an elective abortion after the first trimester.

Much like similar bills passed in seven other states, Texas S.B. 8 mandates that “fetal demise” must be confirmed before the remains can then be removed from the uterus. The laws so far have been challenged and successfully blocked in four states as representing an unconstitutional ban on abortion prior to viability. Abortion opponents’ best chance for changing that, however, is a path through the highly conservative Fifth Circuit Court of Appeals. To get there, the state first needs Yeakel’s final ruling that Texas’s law is also unconstitutional, which would provide Texas Attorney General Ken Paxton the opportunity to appeal to the Fifth Circuit in hopes that Yeakel will be overruled.

The Fifth can reasonably be called the most conservative and anti-abortion of all circuit courts. There are currently 13 judges on the bench and all but five are Republican nominees. In the 1950s and ‘60s, the Fifth was known for decisions that championed civil rights, but that legacy ended abruptly as the court was stacked with conservative judges, including six appointed by President George W. Bush.

One current justice, Judge Edith Jones, argued during a WWH v. Hellerstedt hearing that forcing a woman to drive 300 miles round-trip for an abortion wasn’t an undue burden since patients could drive 75 miles per hour on the “particularly flat highway.” Another, Priscilla Owen, believes that minors shouldn’t be allowed judicial bypass from parental consent laws for terminating a pregnancy. Meanwhile, there are four current vacancies waiting to be filled by President Donald Trump, whose appointments so far have included a lawyer who represented Hobby Lobby in its suit against the Affordable Care Act and a former clerk for conservative Supreme Court Justice Clarence Thomas. The conservative Fifth may move even further to the Right by the time an appeal is heard—exactly the scenario abortion opponents are hoping for.

Both sides assume that Yeakel will block the D&E ban, and that the state will appeal that ruling to the Fifth, which would reverse the injunction. That would lead the plaintiffs to appeal to the Supreme Court for a final ruling, giving the high court a second, landscape altering challenge to Roe v. Wade within the next few years.

The Supreme Court that hears this case could look quite different than it did in 2016 when they ruled against H.B. 2, Texas’ omnibus abortion bill that shut down most abortion clinics in the state by requiring mandatory hospital admitting privileges and expensive and medically unnecessary building regulations. At a minimum, it will have nine judges on the bench. The seat held by Antonin Scalia, who died in February 2016, was left empty until after the 2016 presidential election. Justice Neil Gorsuch was sworn into office on April 10, 2017. Gorsuch, praised by Susan B. Anthony List President Marjorie Dannenfelser for his opinions in the Hobby Lobby and Little Sisters of the Poor cases, is expected to be as conservative as his predecessor, if not more so. And should any other judge leave the court in the next three years, he or she would likely be replaced by Trump, almost undoubtedly moving the court even further to the Right. So far predictions for potential nominees have included Michigan’s Diane Sykes, who tried to reinstate Wisconsin’s unconstitutional voter ID law; Alabama’s William Pryor, who called Roe “the worst abomination of constitutional law in our history”; and, should Trump go even more conservative, the Fifth Circuit’s own Edith Jones.

Even without another appointment, abortion opponents believe that unlike WWH v. Hellerstedt, WWH v. Paxton can sway centrist Justice Anthony Kennedy to side with the court’s right wing and uphold the ban, despite his decision to side with liberals in 2016. The legislation in question, S.B. 8, was drafted by the National Right to Life Committee to appeal directly to Kennedy, who wrote the 2007 majority opinion for Gonzales v. Carhart —the so-called “Partial-Birth Abortion Ban,” which prohibited “intact” Dilation and Extraction. In Kennedy’s opinion, he wrote that both intact and non-intact D&Es have the potential to “devalue human life” and that many would view it with “the most severe moral condemnation.” In writing the model legislation on which S.B. 8 was based, the NRLC used exactly these words to describe what they claim is the “inhumane” and “gruesome” nature of the D&E procedure itself.

Despite the positive ruling from the Supreme Court in 2016, it’s clear that the right to accessible, safe abortion is actually more at risk than ever before. What was seen as a victory for abortion rights in June—when admitting privileges and ambulatory surgical center requirements were struck down as unconstitutional—takes a different tone following a surprise Republican presidential win, a razor thin loss by Democrats to flip the Senate, and a Supreme Court that has again veered Right and may go even further in that direction over the next few years.

Once again, Whole Woman’s Health is the bellwether testing the court’s devotion to the constitutional right to terminate a pregnancy, and once again Justice Kennedy will be the key figure weighing the rights of a fetus against the rights of the person carrying it. And once more we are hoping for a surprise victory, because a loss this time could bring Roe—and safe, legal abortion—to an end.



Robin Marty is a freelance writer focused on abortion legislation, clinic access, and anti-abortion movement history. She is author of Crow After Roe, a blueprint of the red state battle to end abortion one law at a time, and her articles have appeared in Cosmopolitan.com, Rolling Stone, Politico, Ms. Magazine and other publications.