AUSTIN (Nexstar) — A federal appeals court re-heard arguments Thursday on a Texas law banning a common abortion procedure.
In virtual arguments, lawyers for the state defended the measure against privately-owned healthcare organization Whole Women’s Health and other litigants.
The measure being challenged, Senate Bill 8, bans “dismemberment abortions” and abortion providers argue it would effectively prevent them from performing dilation and evacuation (D&E) abortions. This is a procedure doctors use on second-trimester pregnancies, which is typically after 15 weeks.
The law would have required doctors to stop a fetus’ heart before a D&E abortion, except in a medical emergency.
S.B. 8 has been tied up in the courts since it was signed into law in 2017. Most recently, a smaller group of the same appellate judges struck down the state law.
“The Supreme Court has repeatedly held that a ban on the most common method of abortion, and specifically a ban on D&E, imposes an undue burden,” Molly Duane, representing the plaintiffs, told the appellate judges.
“There’s ample evidence in the record as to burdens to demonstrate this law will operate as a substantial obstacle to patients’ access to abortion in Texas,” she said during questioning.
The state’s outgoing Solicitor General Kyle Hawkins represented Texas Attorney General Ken Paxton, who serves as the state’s lawyer.
“We know that simply imposing a burden on a woman seeking an abortion does not render a regulation unconstitutional, and that’s what we’re missing here,” Hawkins said.
Part of Thursday’s discussion circulated around inducing fetal demise using an injection of digoxin.
“Given the number of providers who are already using digoxin in the first place, I don’t think it’s fair to suggest that the state is somehow imposing an added step or an added requirement when it’s something that’s happening anyway,” Hawkins said.
According to a 2008 study published in the National Library of Medicine on the effectiveness and safety of the drug to induce fetal demise prior to second-trimester abortion, “Intrafetal digoxin injection at a dose of 1.0 mg is safe and effective for fetal demise prior to pregnancy termination in the second trimester.”
“Significantly lower doses are effective in most cases,” the study concluded. “Additional doses merit further testing.”
The judges took Thursday’s arguments under advisement. It’s unclear when they’ll make a ruling.