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Explainer: Texas law banning abortion procedure upheld by court of appeals

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August 24, 2021

Last week, the 5th U.S. Circuit Court in New Orleans, Louisiana, upheld a Texas law prohibiting certain uses of an abortion method known as dilation and evacuation (D&E), a procedure “commonly used to end second-trimester pregnancies.” The law, officially known as Senate Bill 8 as it was being considered by the Legislature, was initially blocked by a “three-judge panel of the 5th U.S. Circuit Court of Appeals” just last year but was granted a re-hearing by the full court at the request of the state of Texas. As a result, the law was officially upheld by the court.

The ERLC affirms the court’s decision to uphold Texas law and its prohibition of this inhumane procedure.

What exactly does SB 8 outlaw?

As recorded by Kevin McGill of the Associated Press, SB 8, first passed in 2017, is a law that “seeks to prohibit the use of forceps to remove a fetus from the womb without first using an injected drug or a suction procedure to ensure the fetus is dead.”

Stated differently, the intent of SB 8 is to outlaw what many in the pro-life community refer to as a “dismemberment abortion” from occurring in the second trimester of a mother’s pregnancy. In such dilation and evacuation procedures, children are forcefully removed from their mother’s womb with the use of forceps, resulting in the dismemberment and death of the child. The law, passed in Texas and upheld by the court of appeals on Wednesday, prevents these procedures from taking place.

It bears mentioning that this law is not a sweeping ban on abortion but a prohibition of a specific abortive procedure from occurring at a specific point during a pregnancy. And while more work is yet to be done to strengthen and expand pro-life legislation, this ruling is a common sense step to disallow a grisly method of abortion.

Can an abortion be performed safely?

Of the 14 appellate judges who heard arguments, nine ruled in favor of the Texas law. In the opinion, judges Jennifer Walker Elrod and Don Willett said “the record shows that doctors can safely perform D&E’s and comply with SB8 using methods that are already in widespread use (emphasis added),” an opinion that, despite the majority’s favorable ruling, makes a confounding assertion.

Furthermore, Judge James Dennis, in his dissent, said that SB 8 “makes it a felony to perform the most common and safe abortion procedure employed during the second trimester (emphasis added).” 

These statements beg the question, can an abortion be performed safely? According to these opinions and others, the safety of an abortive procedure depends solely on the resulting health of the mother. While we always want to be concerned about a mother’s health, it is important to recognize that when an abortion is performed precisely the way it is intended, it necessarily results in the death of a person — the preborn baby.

By definition, then, a successful abortion is never safe; it is always fatal.

Reaction outside the court

Outside the court, Nancy Northup, president and CEO of the Center for Reproductive Rights and a critic of the decision, stated that her group “is analyzing the decision and considering all its legal options.” Northup went on to say, “At a time when the health care needs of Texans are greater than ever, the state should be making abortion more accessible, not less.”

On the other hand, Kimberlyn Schwartz, Texas Right to Life director of Media and Communication, praised the decision, saying, “Texans celebrate today’s long-awaited victory” and expressed gratitude at the court’s ruling. 

Obviously, the issue of abortion is a divisive topic within American culture, and the reaction to this ruling by the 5th U.S. Circuit Court of Appeals is further evidence of that. The ERLC, in concert with Texas Right to Life and other pro-life organizations across the country, stands unwaveringly on the side of life.

What’s next?

Though this ruling is favorable to the cause of life, we can be sure that the ongoing work of protecting and preserving the lives of unborn children remains squarely in front of us. Texas’ SB 8 is a common sense measure that, to the extent that this law outlines, ensures the humane treatment of preborn children. The decision could be appealed and go all the way up to the Supreme Court. In the meantime, more robust protections are needed for these most vulnerable  children; protections that seek not only to disallow certain abortive procedures, but that further aid the cause of making abortion unthinkable. 

While we should continue the effort to strengthen and expand current legislation, the cause of life is an issue that will advance only as far as the collective conscience of our culture allows. The ERLC remains resolutely committed to working toward both the strengthening of legislation and the softening of hearts, for the cause of life and the glory of God. 

Jordan Wootten

Jordan Wootten serves as a News and Culture Channel Editor at the Ethics & Religious Liberty Commission. He is a graduate of The Southern Baptist Theological Seminary, where he earned his Master of Arts in Theological Studies. Jordan is married to Juliana, and they have three children. Read More by this Author