Thursday morning, a bench trial began in federal district court in Austin, Texas in Whole Woman’s Health v. Paxton. Over the course of a five-day trial, the named plaintiff, joined by Planned Parenthood and several other abortion clinics and abortion doctors, seek to prove that Texas’ Senate Bill 8, the Texas Unborn Child Protection from Dismemberment Abortion Act, violates a woman’s right to abortion, as first defined in Roe v. Wade.
Gov. Greg Abbott, R-Texas, signed Senate Bill 8 into law on June 6, 2017. The statute bans abortions in which a doctor causes fetal death by dismembering a still-living unborn baby with surgical equipment. As Marc Rylander, the Director of Communications for the Office of Attorney General of Texas, put it:
Today marks the beginning of a historic trial in Texas. Senate Bill 8 prohibits the live dismemberment of babies still in the womb, a practice that has been carried out on babies as old as 22 weeks. (There is an exception for medical emergency.) In this trial, the state of Texas will defend SB 8 and will fight for these unborn children.
Texas’ fight to preserve the Dismemberment Abortion Act began earlier this summer when District Court Judge Lee Yeakel entered a preliminary injunction on Aug. 31, banning government officials from enforcing the law which was originally scheduled to go into effect on Sept. 1, 2017. In preliminarily enjoining enforcement of SB 8, Judge Yeakel concluded that the statute created an “undue burden” on a woman’s “right” to an abortion, under the standard the Supreme Court established in Planned Parenthood v. Casey.
As I explained at the time, Judge Yeakel based his preliminary ruling on the plaintiffs’ claim that SB 8 banned the most common method of second-trimester abortions: dilation and evacuation abortions, in which a doctor dilates a woman’s cervix and then pulls apart the unborn baby, body part by body part. The abortion providers also represented to the court that there is no safe (for the mother) and effective way to cause “fetal demise” prior to dismembering the unborn baby.
However, since the trial court’s late-August ruling, Texas has pushed forward with an expedited discovery schedule. And pretrial filings now indicate that Attorney General Ken Paxton’s team will be ready today to present strong evidence to refute the abortion providers’ claims.
Specifically, through documents and depositions (and an email thread between the abortion providers, the details of which are not yet public) lawyers with the Texas Attorney General’s office appear poised to prove that the abortion clinics and their physicians already use a drug called digoxin to cause “fetal demise” before completing a dilation and evacuation abortion. That is all the law, to which they object, requires them to do.
While the abortionists apparently only use the digoxin fetal-demise technique after 18 weeks gestation, Texas will argue there is no reason digoxin cannot also be safely used at 17 – 18 weeks gestation. Additional trial evidence will clarify that there is no need to use digoxin for early second-trimester abortions because, at 16 – 17 weeks gestation, the abortion begins with the physicians using suction to remove as much of the fetus as possible. The suction causes the death of the unborn baby, and Texas SB 8 does not criminalize suction-dismemberment abortions.
To establish the constitutionality of SB 8, Texas will still need to establish at trial that the statute furthers a valid state interest. Texas has asserted two such interests: “promot[ing] respect for the dignity of the life of the unborn and protect[ing] the integrity of the medical profession.” And once again, pretrial filings indicate that Texas has a strong case that the law furthers both goals, such as exhibits of photographs and videos (including from Planned Parenthood), of fetal remains showing, among other things, the unborn baby’s dismembered arms and legs.
The visual proof of the barbarity of second-trimester abortions should shock the court, as it should all persons of good will. After all, as Rylander said this morning: “Innocent unborn children should at least have the same rights in Texas as prisoners being executed for the most heinous crimes and even animals — who would never be torn apart alive.”
While Texas has garnered strong evidence to establish the constitutionality of the Lone Star State’s Dismemberment Abortion Ban, the question remains whether Judge Yeakel is open to reconsidering his preliminary conclusions once confronted with the reality of dismemberment abortions and proof that the abortion clinics already regularly cause fetal demise before ripping apart the unborn babies.
But here is an even more important question for those professing a pro-choice position: Are you open to confronting the brutality of abortion — especially second and third-trimester abortions which are currently illegal in 90 percent of the world? Or will you once again shield your eyes from the horrible truth and instead hide behind the euphemisms of “women’s health” and “reproductive justice?”
Margot Cleveland (@ProfMJCleveland) is a contributor to the Washington Examiner's Beltway Confidential blog. She served nearly 25 years as a permanent law clerk to a federal appellate judge, and is a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.
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