Fifth Circuit Upholds Ban on Common Previability Abortion Procedure

Steven D. Schwinn, University of Illinois Chicago School of Law

The full Fifth Circuit upheld Texas's ban on a common second-trimester, previability abortion procedure, ruling that the law didn't create an undue burden on a woman's right to abortion. The law and ruling limit the way doctors can perform a "dilation and evacuation" abortion in Texas: they cannot use forceps to separate, terminate, and remove the fetus (what the state calls a "live dismemberment" procedure); instead they can only use a suction technique to remove a fetus, or cause "fetal death" (through digoxin injections) prior to removing the fetus with forceps.

The ruling also deepens a circuit split over the Court's controlling opinion--and the operative test for abortion restrictions--in June Medical.

The case, Whole Woman's Health v. Paxton, tests Texas's restriction on the common D&E procedure for second-semester, previability abortions. Doctors who perform these abortion use one of three principal methods: (1) they use a suction method alone to terminate, separate, and remove a fetus; (2) they use suction and forceps together to terminate, separate, and remove a fetus; or (3) they use "fetal-death" techniques (like digoxin injections) to terminate the fetus before removing it with forceps. The Texas law bans the use of the second technique, except in cases of a "medical emergency."

The court ruled--contrary to the district court--that the law wasn't facially unconstitutional. In short, it held that the ban didn't create an undue burden on a woman's right to abortion, because the law allowed doctors to perform abortions using the suction method alone, or by causing "fetal death" prior to fetal evacuation.

Along the way, the court held that Chief Justice Roberts's opinion in June Medical was the Court's controlling opinion (under the Marks) rule, and so it didn't have to balance the burdens of the law against the state's asserted benefits of the law; instead, it examined only whether the law created an undue burden. (The balancing test used by the plurality in June Medical tends to work in favor of a woman's right to abortion, especially where, as here and in June Medical, the state asserts only weak (or no) benefits from the restriction. Chief Justice Roberts's approach tends to work against a woman's right to abortion in those situations, because it ignores the state's relatively weak benefits, or its lack of benefits altogether.) The court's ruling on this score aligns it with the Eighth and Sixth Circuits, but puts it at odds with the Seventh and Eleventh Circuits.

Five judges dissented. Three of the dissenters argued that the case was controlled by Stenberg v. Carhart (2000), where the Court overturned a state restriction that operated just like Texas's law. Moreover, these three said that the suction method and the "fetal-death" method both created undue burdens on a woman's right to abortion, because both procedures created additional risks, and that those risks outweighed the state's asserted benefits of the law. (The dissenters applied the balancing test (not Chief Justice Roberts's approach) from June Medical.)

Two other dissenters argued that the court should've simply remanded the case after clarifying that Chief Justice Roberts's approach would control, and clarifying the court's views on the Supreme Court's abortion jurisprudence more generally.