Federal judge strikes down ‘unconstitutional’ Texas anti-abortion law

Activists dressed as characters from "The Handmaid's Tale" chant in the Texas Capitol Rotunda as they protest SB8. Tuesday, May 23, 2017, in Austin. (AP Photo/Eric Gay)

This week, U.S. District Court Judge Lee Yeakel ruled that Senate Bill 8, a Texas law which restricted a common second-trimester abortion procedure, was unconstitutional.

In a pointed decision on November 22, Yeakel said that the bill “does not further the health of the woman before the fetus is viable.”

“That a woman may make the decision to have an abortion before a fetus may survive outside her womb is solely and exclusively the woman’s decision. The power to make this decision is her right,” Yeakel wrote. “Once the Supreme Court has defined the boundaries of a constitutional right, a district court may not redefine those boundaries. Further, the role of this district court is to preserve a right, not to search for a way to evade or lessen the right.”

As ThinkProgress has previously reported, SB8 is “the most stringent anti-choice bill to come out of the Lone Star state since 2013.” The Texas Senate voted to pass the bill 22-9 in May, and just weeks later, Gov. Greg Abbott (R) signed it into law. But before it could go into effect in September, the law was put on hold due to lawsuits by Planned Parenthood, Whole Women’s Health, and other reproductive rights groups.

There are many dangerous aspects of SB8, including the section that lays the groundwork for criminalizing people who help women, transgender, and gender nonconforming individuals obtain abortion care. But this particular legal battle is over the ban on dilation and evacuation abortions, which has become a popular tactic by anti-abortion activists in recent years.

Supporters of the bill argue that it is reasonable and necessary for doctors to stop a fetus’s heart before an abortion procedure is performed. However, abortion providers insist that many of the methods to stop fetal heartbeats — including injecting potassium chloride or digoxin into a fetus or cutting the umbillical cord — are dangerous to women.

In his ruling, Yeakel noted that seven other states have enacted “fetal-demise” laws akin to SB8, and many of them have been challenged legally. Just last month, a federal district court in Alabama rendered a permanent injunction on a similar bill, ruling that there was “no question” the fetal-demise law would “prevent women in Alabama from obtaining a previability abortion after 15 weeks.”

Yeakel also stressed that “there are no legislative findings that these fetal-demise procedures are safe and effective or that any is necessary for preservation of the life or health of the woman.” Additionally, those fetal-demise procedures “would be particularly burdensome for low-income women, many of whom must wait to seek a second-trimester abortion, because of the time required to obtain the funding to cover the costs of the abortion.”

Texas has a long history of working overtime to restrict abortion access. Extreme cuts to family planning spending in 2011 have led to an increase in teen abortions in the state. In August, Gov. Abbott signed a bill that prohibits insurance companies from covering non-life threatening abortion care in standard health plans. As reported by the Huffington Post, SB8 also included a section that mandates the burial or cremation of fetal remains from miscarriages and abortions. In January, a judge ruled that those rules “impose an undue burden on the right to an abortion,” but that ruling has been appealed and a final outcome of the case is still pending.

Yeakel’s ruling against the fetal-demise bill is being appealed by Texas Attorney General Ken Paxton. The case heads to the Fifth Circuit next, and after that, it could go to the Supreme Court. Last year, the Supreme Court struck down another Texas abortion bill, which placed medically unnecessary restrictions on clinics that performed abortions.