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Texas’ second trimester abortion ban is latest to be halted by the courts

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In yet another blow to anti-abortion advocates, a federal judge temporarily blocked a ban on the most common kind of second-trimester abortion Thursday, one day before it was set to go into effect. The ruling makes Texas the latest state among a few where these restrictions have been stalled by the courts.

Judge Lee Yeakel of the United States District Court for the Western District of Texas issued an injunction that would last 14 days. On Sept. 14, the judge will hold a hearing on whether to extend this order through a preliminary injunction. If that happens, the issue could go from a District Court to the United States Court of Appeals for the Fifth Circuit and potentially the U.S. Supreme Court. Last year, the U.S. Supreme Court struck down a Texas abortion restriction that put medically unnecessary regulations on clinics.

Yeakel wrote in his ruling, “The act leaves that woman and her physician 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.”

This ban was part of Senate Bill 8, a law that included multiple abortion restrictions. The law forces many people to delay their abortion because the procedure, dilation and evacuation, is not available for them past 14 weeks’ gestation, said Elizabeth Nash, senior state issues manager at the Guttmacher Institute.

“There are not many alternatives that are available, and for some women, depending on the point in their pregnancy, they would also have to wait until another point in pregnancy for another method to be available,” Nash said. “That’s not how we provide medical care. When you need medical care, you should be able to access it and not have to wait because valid routinely used and safe method has been banned by politicians.”

Although states will keep pushing for these bans, Nash said, it is a good sign that Texas has joined a few states, such as Kansas, Oklahoma, Alabama, Louisiana, and Arkansas, to block these restrictions. Kansas was the first to pass this restriction in 2015. There are two states with these restrictions where challenges were not filed, Mississippi and West Virginia, which only have one abortion clinic. These states’ abortion clinics don’t provide the procedure at all, so the laws could not be easily challenged, Nash said.

“That gives abortion rights supporters some hope, because these laws are at least blocked during these court cases and there is some hope that judges will consider these laws unconstitutional,” Nash said. 

Nash added that she finds it encouraging that the media and public have not popularized terms used by anti-abortion activists to describe these laws. By using language that makes the procedures sound dangerous, anti-abortion activists were successful in pushing for what they called “partial birth” abortion bans in the 1990s, Nash explained. This was a different second-trimester procedure called intact dilation and extraction.

“They use this term called ‘dismemberment abortion,’ which hasn’t been picked up in the same way that partial birth abortion was used,” Nash said. “We haven’t seen that term catch up, so I am wondering if that shows some sense of reluctance on the part of the public and the media to buy into the claims by abortion opponents on this issue.”

That doesn’t mean other states will stop introducing these restrictions, however, Nash said. Eleven other states, which include New York, Pennsylvania, Rhode Island, Ohio, Missouri, North Carolina, South Carolina, South Dakota, Illinois, Maryland and Michigan, have introduced these bans this year.

“I do expect this will be present in state legislatures in 2018, if only because when Texas enacts abortion restrictions, the whole country apparently pays attention,” Nash said. “[The Texas legislature] has a longstanding commitment to undermining women’s rights.”

Bans on the second trimester procedure of evacuation and dilation are just the latest attempt from anti-abortion groups to ban one procedure at a time in the hopes of making abortion completely inaccessible. The same group that drafted bans on “partial-birth” abortion, National Right to Life Committee, created model legislation that states could use for these bans. According to the group’s publication, the Alabama’s Unborn Child Protection from Dismemberment Abortion Act is based on model legislation provided by the National Right to Life Committee.

“Abortion opponents have tried for decades to ban abortion at viability,” Nash said. “Then they’re trying to ban abortion at 20 weeks, and then trying to ban partial birth-abortion used later in the second trimester, and now they’re trying to ban second trimester abortion and are trying to limit access to medication abortion.”

Nash added, “They can’t ban abortion outright, so they try to ban abortion method by method and this is part of that effort. These bans on second-trimester abortions feed into that strategy.”

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