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Federal appeals court upholds Texas abortion dismemberment ban, allowing the law to take effect immediately





The Fifth Circuit Court of Appeals has upheld a Texas law banning “dismemberment” abortions, reversing a prior ruling by a three-judge panel of the same court and allowing the law to take effect immediately.


Quick Facts



A nine-judge majority of the 17-member court ruled in favor of the Texas law that outlaws an abortion method commonly used to end second-trimester pregnancies, while five judges dissented from the ruling, and three judges recused themselves from the case.


The 2017 law in question seeks to prohibit the use of forceps to remove a fetus from the womb, which supporters of the law call a “dismemberment abortion” that is performed without first using an injected drug or a suction procedure to ensure that the fetus is dead. The court concluded that the law’s restrictions promote the state’s interest in eliminating fetal pain. 


The majority noted that Texas law even demands that unwanted dogs and cats must be killed using humane procedures, writing, “It cannot be said on this record that Texas has no legitimate interest in requiring fetal demise by a means other than dismemberment during an abortion.”


Abortion rights advocates had argued that the law, known as SB8, effectively outlaws what they say is often the safest method of abortion for women during the second trimester of pregnancy, a procedure medically known as dilation and evacuation (D&E).


Last year, a three-judge panel of the Fifth Circuit blocked enforcement of the law in a 2-1 ruling, with the panel stating that the statute “unduly burdens a woman’s constitutional right to terminate her own pregnancy.” Texas sought a re-hearing by the full court, and their request was granted. The dissent, written by Judge James Dennis and on behalf of Judges Carl Stewart and James Graves, argued, “Under the guise of regulation, [the bank] makes it a felony to perform the most common and safe abortion procedure employed in the second trimester.”


The majority of the full court found the Texas law to be constitutional, and concluded that the lower court’s opinion preventing it from taking effect rested on “bad law, bad facts, and bad math.”


Additionally, the court’s ruling also found that the plaintiffs failed to show that the measure imposes an “undue burden on a large fraction of women in relevant circumstances.”


Physicians found to violate SB8 could face up to two years in prison, underscoring the societal impact of the Fifth Circuit ruling, which allowed the law to immediately go into effect.


The decision comes a month before Texas’ “heartbeat ban” legislation, passed earlier this year, is set to take effect. That separate law would bar most abortions if a fetal heartbeat can be heard, which can occur as early as six weeks into pregnancy.



States continue to pass restrictions that recognize the humanity of the unborn. This particular Texas law recognizes that pulling apart a human child by its limbs is barbaric. This is especially important since new medical research shows that a fetus can potentially feel pain as early as eight weeks, and premature babies are being born and surviving as young as 21 weeks gestation.


The ruling to uphold Texas’ ban on dismemberment abortions is a small victory in that it helps shed light on the reality that a second-trimester abortion is neither sterile, painless, nor humane, but it nonetheless should be no cause for celebration among those who are pro-life.


The fact remains that unborn children will still be killed in Texas, only their deaths will result from the use of saline, which effectively burns the baby to death, or some other gruesome method that the abortion industry will devise to get around this ruling. And all this on children who are at a gestational age when they would have a fighting chance at survival if they were actually born at this point in their development.


These legislative efforts to restrict abortion are having an impact, however, as the sheer number of them have led the Supreme Court to take up its first major abortion case in more than two decades. The hope is that the issue of whether or not states have the constitutional right to protect unborn life from abortion will force the justices to take a fresh look at Roe v. Wade and realize that that decision, like that of the Dred Scott case in 1858, is flawed because it legally dehumanizes a segment of society for the sake of convenience and profit. Both cases are against the biblical truism that all of God’s children are precious in His sight and the unalienable rights found in the Declaration of Independence to life, liberty, and the pursuit of happiness.


Abortion kills life before it even has a chance to enjoy liberty or pursue happiness — much less realize God’s whole plan and purpose for that life. The Church must pray that the Court and society at as a whole will once again recognize that human life is valuable — at all stages.