Judges greet arguments against Texas abortion law with skepticism

Lawyers for Texas and abortion providers appeared before a federal appeals court Thursday to argue the fate of a 2017 state law — struck down by a U.S. judge in Austin — that bans the most common type of second-trimester abortion unless doctors first use an extra procedure to ensure fetal demise.

However, on a court where Republican-appointed judges hold a 12-5 advantage, the vast majority of skeptical questions and pushback was reserved for the lawyer representing abortion providers who challenged the law as unconstitutional.

The 5th U.S. Circuit Court of Appeals will release its opinion on the law known as Senate Bill 8 at a future, unspecified date, but Thursday's oral arguments boded well for supporters of a law that had been struck down twice previously.

Related: Texas abortion opponents vow a major push in 2021. It's our No. 4 issue of the legislative session.

First, U.S. District Judge Lee Yeakel ruled in November 2017, after a five-day trial in his Austin courtroom, that SB 8 improperly required doctors to use risky, unproven and medically unnecessary methods to cause fetal demise before beginning a dilation and evacuation abortion, or D&E, the safest and most common such procedure after the 15th week of pregnancy.

Then, last October, a panel of 5th Circuit Court judges upheld Yeakel in a 2-1 ruling that said SB 8 places an impermissible burden by forcing women to "endure a medically unnecessary and invasive additional procedure" against their doctors' advice.

The two judges in the majority had been appointed by a Democratic president, and their ruling was soon halted when a majority of judges on the appeals court voted to hear Texas' appeal and decide SB 8's constitutionality with all 17 active judges participating.

Molly Duane, a lawyer for the abortion providers, argued Thursday that SB 8 required doctors to inject toxins into the fetus via a 4-inch needle inserted through the abdomen or vagina, carrying higher risks of infection and other health complications for patients.

Judge Don Willett, appointed by former President Donald Trump, pushed back, noting that several abortion providers in the lawsuit routinely used fetal toxins prior to an abortion, including one that called the procedure safe in a medical consent form that was changed shortly before the lawsuit was filed to remove the language about safety.

Duane replied that D&E abortions are provided after the 15th week of pregnancy, but because no abortion doctor has injected a toxin prior to the 18th week, SB 8 requires the use of an experimental, untried procedure on women.

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Other judges criticized Yeakel's ruling, noted that states have an interest in valuing potential life and openly questioned points raised by Duane.

Arguing for Texas, lawyer Kyle Hawkins said SB 8 does not ban D&E abortions but instead prohibits a living fetus from being dismembered.

"It's illegal to kill an animal in Texas by ripping it limb from limb. SB 8 extends that same protection to ... unborn children on the cusp of viability," he said.

Hawkins also argued that the law is not a substantial burden on access to abortion because it applies to a small percentage of abortions in Texas, most of which take place earlier in a pregnancy, and he rejected concerns raised by abortion providers, saying the state has identified several fetal-demise procedures that are "safe, effective and available."

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This article originally appeared on Austin American-Statesman: Judges greet arguments against Texas abortion law with skepticism

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