Pro-life victory for Texas

A federal appeals court on Wednesday upheld a Texas law that protects babies from a brutal form of second-trimester abortions. The 2017 law never went into effect due to court challenges from pro-abortion groups. It prohibits abortionists from conducting “dismemberment abortions,” a procedure that involves using rigid instruments to tear the unborn baby apart so the infant dies during removal from the mother. The court noted abortionists have alternative methods available to them when conducting second-trimester abortionists and that the state has an interest in preventing the pain of unborn children.

Pro-abortion groups, including Whole Women’s Health, claimed the law is unconstitutional. On its website, the Center for Reproductive Rights calls the procedure “one of the safest and most common methods of ending a pregnancy in the second trimester,” and the American College of Obstetricians and Gynecologists in 2019 said it “results in fewer medical complications than other abortion procedures, and often is necessary to preserve a woman’s health or her future fertility.”

In a statement responding to Wednesday’s ruling, Whole Women’s Health President Amy Hagstrom Miller stuck to similar arguments. “In no other area of medicine would politicians consider preventing doctors from using a standard procedure,” she said. “It should never be a crime for doctors to use their best medical judgment and follow the most current science.”

But the 5th U.S. Circuit Court of Appeals points out women could still abort during the second trimester under the law. Abortionists can use the suction method to abort the baby and other procedures that involve killing the baby before removal. Because of that, the law can’t be a substantial burden to women seeking abortions.

The judges latched onto the possibility that unborn babies experience extreme pain during the dismemberment process. Although they noted that scientists disagree about when unborn babies can feel pain, they found states have a right to “err on the side of caution” and prohibit procedures that have the potential to cause suffering.

“Indeed, if states must avoid unnecessary pain to convicted murderers on death row as a matter of constitutional mandate,” they write, “then surely states may avoid unnecessary pain to innocent unborn babies as a matter of constitutional discretion.”

Although the law still leaves abortionists with plenty of other legal means to kill unborn babies, Texas Right to Life trumpeted the ruling as an important step for the courts, noting that if an appeal found its way to the Supreme Court, the justices would have to decide, “Is a dismemberment abortion inhumane enough to warrant legal prohibition?” Texas Right to Life said a decision upholding the legislation could chip away at the whole of legal abortion: “The evident answer to this targeted question directly undermines some of the Supreme Court’s central premises in their abortion jurisprudence, such as the misconception that pre-viability abortions are more ethical than those that occur after viability.”