{"id":12845,"date":"2021-01-25T19:40:29","date_gmt":"2021-01-25T19:40:29","guid":{"rendered":"https:\/\/www.radiofree.org\/?p=154380"},"modified":"2021-01-25T19:40:29","modified_gmt":"2021-01-25T19:40:29","slug":"texas-encourages-court-to-endorse-risky-medically-unnecessary-abortion-procedure","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2021\/01\/25\/texas-encourages-court-to-endorse-risky-medically-unnecessary-abortion-procedure\/","title":{"rendered":"Texas Encourages Court to Endorse Risky, Medically Unnecessary Abortion Procedure"},"content":{"rendered":"
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The morning after<\/u> President Joe Biden was inaugurated, the 5th U.S. Circuit Court of Appeals convened to consider whether Texas should be allowed to ban the safest and most common method of abortion used later in pregnancy. If the court agrees with Texas, it would be endorsing a previability abortion ban in direct conflict with decades of precedent.<\/p>\n

At issue is the dilation and evacuation method of abortion, known as D&E, which is considered the safest and most effective method of termination during the second trimester of pregnancy. The procedure involves dilation of the cervix, then the removal of the fetus and products of conception, typically with medical instruments, followed by vacuum suction. D&E is used in nearly all later-term procedures in the U.S., which account for a small percentage of all abortions: In 2016, roughly 5.4 percent<\/a> of abortions occurred after 16 weeks.<\/p>\n

Nonetheless, D&E has come under fire from anti-abortion activists and lawmakers who have dubbed it \u201cdismemberment abortion\u201d (a term that has no basis in medicine) because the process causes disarticulation when the fetus hits the cervix. In order to provide more \u201chumane\u201d treatment to a previable fetus, Texas decided to ban D&E<\/a> and make it a criminal offense to provide the procedure unless a doctor can first cause fetal demise.<\/p>\n<\/div>\n

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The problem is that there is no meaningful way to ensure fetal death before an abortion is performed, and the methods to do so can be risky. In other words, advocates for reproductive rights say, Texas is seeking to ban a universally medically accepted procedure in favor of a law that would force doctors to experiment on women.<\/p>\n

\u201cWhat this law really does is make it a crime for physicians to use their best medical judgment and provide their patients with the highest standard of care,\u201d Molly Duane, a lawyer with the Center for Reproductive Rights, which is representing Texas\u2019s abortion providers, told The Intercept. \u201cThat\u2019s something that\u2019s unheard of in the context of medicine, broadly. You just don\u2019t see politicians meddling with medicine in that way except that, of course, abortion is always treated differently.\u201d<\/p>\n

In the summer of 2017, as the law was set to take effect, abortion providers sued to block it. They were ultimately successful, both in the district court, which permanently enjoined the law, and then again last fall, when a three-judge panel of the 5th Circuit concluded that the law was unconstitutional<\/a>. \u201cAn undue burden, we reiterate, exists when a \u2018state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,\u2019\u201d the majority wrote. \u201cThe Supreme Court has repeatedly determined that a statute that would effectively ban the safest, most common method of second trimester abortion imposes an undue burden.\u201d<\/p>\n

Eight states have passed D&E bans, and every federal court that has taken up the issue to date has blocked those laws from taking effect. When Alabama lost its case before the 11th Circuit, it appealed to the U.S. Supreme Court, which declined to take the case. There, even Justice Clarence Thomas reluctantly<\/a> concluded that Alabama\u2019s law would not pass legal muster.<\/p>\n

But that hasn\u2019t stopped the 5th Circuit from pressing the issue. On October 30, the court made the rare move to rehear the case en banc on its own motion \u2014 meaning that without Texas asking them to do so, the judges determined the full court would reconsider whether the previous panel, which split 2-1 to block the law, had made the right decision. \u201cWe take this as a concerning signal,\u201d Duane said. \u201cBut what we know is that the law and the facts \u2026 support us.\u201d<\/p>\n<\/div>\n

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\n

Abortion rights demonstrators rally outside the U.S. Supreme Court in Washington on March 4, 2020.<\/p>\n

\nPhoto: Jacquelyn Martin\/AP<\/p>\n<\/div>\n<\/div>\n

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A De Facto Ban<\/h3>\n

In a hearing held remotely on January 21, Texas\u2019s solicitor general Kyle Hawkins came out swinging with loaded language and junk science. The state had enacted the D&E ban to \u201cprohibit live fetal dismemberment abortions,\u201d he said. \u201cIt\u2019s illegal to kill an animal in Texas by ripping it limb from limb,\u201d and the state\u2019s ban would extend \u201cthat same protection \u2026 to pain-capable unborn children on the cusp of viability.\u201d<\/p>\n

The law wasn\u2019t actually a ban, he argued. \u201cIt simply requires those who commit abortions to kill the unborn child in a more humane way before tearing her arms and legs off.\u201d He told the court that there were plenty of ways of doing this, including using drugs like digoxin or potassium chloride to kill the fetus before extracting it from the uterus.<\/p>\n

The alternatives Hawkins was trying to normalize are anything but typical. Potassium chloride injections require specialized training and can prove fatal to a woman if administered incorrectly. Digoxin, which is administered via a 4-inch needle inserted into the uterus through the vagina or abdomen, has a failure rate as high as 13 percent, meaning it could take multiple shots to induce demise \u2014 and there\u2019s no research to confirm that\u2019s safe. Another method of demise, umbilical cord transection, can cause perforations of the uterus and damage to the cervix.<\/p>\n

While some providers do use digoxin, it is administered on a case-by-case basis and, importantly, is not used before 18 weeks. Texas would require doctors to ensure fetal demise starting at 15 weeks \u2014 a medically unnecessary and risky proposition, Duane told the court.<\/p>\n

\u201cNo method of demise works in every case, and a physician cannot know if demise will be successful until after starting a procedure, at which point it is simply too late to turn back,\u201d she said. \u201cRather than risk going to jail for violating [the ban] or violate their own ethical obligations \u2026 some physicians will stop providing abortion altogether.\u201d<\/p>\n

If a doctor couldn\u2019t be sure that demise had taken place until the abortion procedure had already begun \u2014 patient on the table, feet in stirrups, cervix dilated \u2014 then what? Would they be required to continue trying to cause demise? Would they be able to go forward with the abortion without facing potential criminal prosecution? \u201cTellingly, Texas provides no answer for what a physician should do when a demise attempt fails,\u201d Duane said.<\/p>\n

According to Hawkins, even in that scenario, the doctor would have to keep trying to cause demise. Under the law, if a doctor is mid-procedure when they determine demise hasn\u2019t happened, that would not qualify as a \u201cmedical emergency\u201d and thus would not protect the doctor against prosecution. \u201cIn your run-of-the-mill case, that is not a medical emergency,\u201d Hawkins said. Still, he argued, that didn\u2019t make the law unconstitutional. \u201cIn that situation, there are still numerous alternatives available,\u201d he said \u2014 like administering additional digoxin, a dose of potassium chloride, or severing the umbilical cord.<\/p>\n

\u201cYou\u2019re already in the middle of the procedure,\u201d Chief Judge Priscilla Owen said. \u201cBut in no circumstances can you finish the abortion procedure with a not-dead fetus.\u201d<\/p>\n

Absent an emergency, Hawkins said, that was correct. But since the law hadn\u2019t been allowed to take effect, he argued, there was no way to know if any of this was going to be a problem in practice. And if there were to be any individual patient for whom the law \u201cerected a substantial obstacle\u201d to obtaining an abortion because demise didn\u2019t work or \u201cbecause of some contraindication or some idiosyncratic medical issue, that patient of course could pursue an as-applied challenge to this law,\u201d he said.<\/p>\n

\u201cShe\u2019s on the table!\u201d Owen replied.<\/p>\n<\/div>\n

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\"Those<\/p>\n

People attending an Odessa City Council work session listen to Texas Right to Life\u2019s Mark Lee Dickson speak about an ordinance that would outlaw abortion within the city of Odessa, Texas, on Jan. 14, 2021.<\/p>\n

\nPhoto: Jacob Ford\/Odessa American\/AP<\/p>\n<\/div>\n<\/div>\n

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Invoking Junk Science<\/h3>\n

While Texas\u2019s position came across as stunningly extreme, Hawkins\u2019s arguments were well-received by a number of the judges who took part in the oral argument, including those who seemed to fancy themselves medical experts or invoked junk science to bolster their apparent approval of the law. One argued that there was an alternate procedure employing suction aspiration after 15 weeks; no, that\u2019s not the standard of care, Duane said. Still others \u2014 including Judge Edith Jones and her Trump-appointed colleague Judge James Ho, both<\/a> of whom are vocally anti-abortion \u2014 peppered Duane with questions about \u201cfetal pain.\u201d<\/p>\n

\u201cIt seems to me that even in high school, if you\u2019re going to dissect a frog, you kill him before you start taking him apart,\u201d Jones said. \u201cAnd so I\u2019m not quite sure why the state has no interest in giving a growing fetus in the womb the same kind of humanity that we would give a frog.\u201d<\/p>\n<\/div>\n

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Duane pointed out that there is no credible medical evidence that a fetus can feel pain until much later in pregnancy because the necessary neural connections simply don\u2019t exist. (The junk science of fetal pain<\/a> has been used to pass 20-week abortion bans across the country.)<\/p>\n

\u201cBut we don\u2019t know about frog pain, do we?\u201d Jones replied.<\/p>\n

Ho followed up: \u201cI realize that you dispute that there\u2019s fetal pain in these particular fact patterns, but let\u2019s put that dispute aside,\u201d he said. \u201cDoes the state have an interest in preventing and reducing and mitigating fetal pain?\u201d<\/p>\n

The question was hard to answer, Duane replied, since fetal pain was not an issue in this case. \u201cThe state just does not have that interest here.\u201d Well, Ho said, she could take the question as a hypothetical. \u201cAnd if you don\u2019t want to answer, that\u2019s fine too,\u201d he said. \u201cI just want to make sure you\u2019re making a decision not to answer the question.\u201d<\/p>\n

Duane said that she wasn\u2019t trying to be evasive, but it was \u201ca difficult hypothetical to imagine\u201d since it had no bearing on the case at hand.<\/p>\n

Going Rogue<\/h3>\n

In the end, Hawkins argued that not only was the ban constitutional, but the appeals court should substitute its judgment for that of the district court, which has enjoined the law.<\/p>\n

But that\u2019s not what the appellate courts are supposed to do. The district court in this case presided over a five-day trial with 19 witnesses and hundreds of exhibits before concluding that the law could not stand. The 5th Circuit\u2019s job is to review the lower court\u2019s decision for clear error \u2014 meaning that if the trial court\u2019s factual determinations based on the evidence presented are plausible in light of the entire record, the appellate court may not reverse the lower court\u2019s opinion, even if it would have decided the case differently.<\/p>\n

Still, the 5th Circuit has developed something of a penchant for ignoring the rules and substituting its own judgment for that of the lower court by wholly reimagining<\/a> the importance of witnesses and evidence at a trial it had no part in. Just last summer, the Supreme Court rebuked the 5th Circuit when it struck down as unconstitutional a Louisiana abortion law that the appellate court had overruled a lower court in order to uphold.<\/p>\n

Given the tenor of the arguments in the current case \u2014 and the fact that in deciding to rehear it at all, the judges are challenging not only the lower court but also members of their own bench \u2014 it does not appear that the 5th Circuit has absorbed the Supreme Court\u2019s reprimand and decided to stay in its own lane.<\/p>\n

If the court overturns its previous decision and lets the D&E law stand, it would be affirming a de facto ban in Texas on all abortion after 15 weeks, Duane and others argue, since complying with the law would require doctors to reject safe medical practice and instead perform a procedure of unknown efficacy and safety. To date, the federal courts have not only blocked D&E bans from taking effect but also blocked outright bans on abortion before 15 weeks, which is long before a fetus is viable outside the womb.<\/p>\n

Still, if the Texas case makes it to the Supreme Court, what the justices might decide to do is unknown. The Supreme Court is a very different place than it was just months ago; with the elevation of Amy Coney Barrett to fill the seat vacated by the death of Justice Ruth Bader Ginsburg in September, the court now has a solid 6-3 majority that disfavors abortion rights. Indeed, last June, the state of Mississippi appealed to the Supreme Court to uphold its 15-week ban; to date, the court has not decided whether it will take the case.<\/p>\n<\/div>\n\n

This post was originally published on Radio Free<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"

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