NEW ORLEANS -- Texas officials asked a federal appeals court’s permission Tuesday to enforce a ban on a commonly used second-trimester abortion procedure — before the court rules on its constitutionality.
A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans heard arguments on the law in November 2018. But the panel had yet to rule as of Tuesday. Last week, the same panel declined a Texas motion to allow enforcement of the law while it prepares its ruling. So, Texas officials on Tuesday asked the full 17-member court to consider the matter, essentially doing an end run around the panel.
The 2017 law uses the non-medical term “dismemberment abortion” to describe a procedure in which forceps and other instruments are used to remove the fetus from the womb, a process the Texas Legislature declared “brutal and inhumane.” Abortion rights groups say the procedure, used in second-trimester abortions, is known as dilation and evacuation, and that eliminating it forces women who did not or could not get an abortion in the first trimester, to choose less safe, less effective options.
A federal judge in Texas struck down the law in 2017, leading to the appeal before the 5th Circuit panel in New Orleans.
One reason the case has simmered at the 5th Circuit for so long is that the panel that originally heard the case nearly 22 months ago put it on hold pending a Supreme Court ruling in another abortion restriction case: a Louisiana law that required doctors who perform abortions to have admitting privileges at nearby hospitals.
The Supreme Court ruled on that case in June — striking down the Louisiana law. It was an immediate victory for abortion rights supporters. However, foes of legal abortion have focused on an opinion in the case written by Chief Justice John Roberts.
Roberts had sided with the court’s four liberal justices in striking down the Louisiana admitting privileges law. He said the court should stand by an earlier decision striking down another state’s nearly identical law. However, he also said he thought the earlier decision had been wrongly decided.
Roberts' reasoning has led some analysts — and anti-abortion lawyers — to believe there is a Supreme Court majority ready to allow more restrictions on legal abortion. Texas attorneys argue that, based on Roberts' opinion, the Texas ban on dilation and extraction is not an unconstitutional burden on a woman's right to an abortion.
Appellate judges in other areas also appear to think the issue might be ready for another look. On Aug. 7, the 8th U.S. Circuit Court of Appeals lifted a lower court order that had blocked four Arkansas abortion restrictions, including a ban on dilation and evacuation procedures. The 8th Circuit ruling said the U.S. District Judge in Arkansas needed to take another look at the issue in light of Roberts’ opinion in the Louisiana case.
Still, the Supreme Court, in June 2019 declined to hear arguments on a similar dilation and extraction law in Alabama that was blocked by a federal judge.
The Texas case was argued at the 5th Circuit in November of 2018 before judges Carl Stewart and James Dennis, both nominees of President Bill Clinton; and Judge Don Willett, a nominee of President Donald Trump. Willett broke with Stewart and Dennis last week, saying a stay should have been issued so the law could be enforced.
Texas' new request for a stay will be considered by a full appeals court on which nominees of Republican presidents outnumber Democratic presidents' nominees 12-5.