Published On: Fri, Nov 2nd, 2018

Texas court to hear Dismemberment Abortion ban on Monday

The United States Court of Appeals for the Fifth Circuit will hear oral arguments over the Texas Dismemberment Abortion Ban on Monday, November 5.  The three-judge panel hearing the arguments will include Chief Judge Carl E. Stewart, and Judges James L. Dennis and Don R. Willett.  The Texas Dismemberment Abortion Ban, passed by the Texas Legislature in 2017, outlaws one specific gruesome and barbaric abortion method commonly used in the second trimester of pregnancy.  The bill defines dismemberment abortion as the procedure where the preborn child is torn apart limb from limb while her heart is still beating.

A temporary injunction against the law was issued before the measure was to take effect in August of 2017 by U.S. District Judge Lee Yeakel, who held a full trial in November of 2017 and subsequently issued a permanent injunction.  The Dismemberment Abortion Ban has yet to be enforced by the state of Texas. Attorney General Ken Paxton’s office has forcefully defended the law through lawyers at the Solicitor General’s team led by Darren McCarty.  At the five-day trial last November, attorneys for the state questioned several abortionists, bioethicists, and medical professionals, building an extensive trial record for the circuit court to review.  The record includes models, diagrams, and medically accurate descriptions of a dismemberment abortion, which will be key for the appellate judges when considering the brutal nature of this abortion method.

Although the Fifth Circuit has previously ruled in favor of many Texas Pro-Life laws, the outcome of the case has the potential to change greatly based on the particular three-judge panel who is drawn to hear the case.  In this instance, two of the three judges (Stewart and Dennis) were appointed by anti-Life President Bill Clinton and have served since the mid-1990s.  Justice Willett was appointed by Pro-Life President Donald Trump and was sworn in earlier this year.

Chief Justice Carl Stewart, a former Judge Advocate General attorney for the U.S. Army, has said little about abortion publicly in recent years.  Stewart was one of the judges on the panel who reversed U.S. District Judge Sam Sparks over his decision to block Texas from removing Planned Parenthood from participation in the Women’s Health Program.  The opinion stated that Texas generally had the authority to regulate the activity of providers receiving tax dollars within a government program. However, the opinion remanded the case back to the district court for further discovery.

photo Alyson Jones

Judge James Dennis has been less reserved about his disdain for Pro-Life laws passed by Texas.  When a three-judge panel upheld the challenged provisions in the Pro-Life Omnibus Bill House Bill 2 (2013), the decision was appealed to the full court where 12 of 15 judges voted with the panel.  Judge Dennis, however, wrote a scathing 64-page dissent, stating:

“If not overruled, the panel’s sham undue burden test will continue to exert its precedential force in courts’ review of challenges to similar types of recently minted abortion restrictions in Texas, Louisiana, and Mississippi.” 1

Justice Willett has more conservative leanings and is well-known as a former Texas Supreme Court justice.  Though abortion cases rarely come before the Texas Supreme Court, Willett has previously spoken at various Texas chapters of the Federalist Society, a conservative-leaning society of lawyers, and is expected to respect Texas’ state interest in protecting preborn Life.

Texas Right to Life will attend, monitor, and cover the oral arguments in New Orleans and are hopeful the case (or a similar one) will soon be presented before the Supreme Court of the United States.  The Dismemberment Abortion Ban is a reasonable and basic protection from a barbaric death for preborn children and could have far-reaching implications for the nation and the new Supreme Court.

1 https://feminist.org/blog/index.php/2014/10/13/full-fifth-circuit-court-of-appeals-refuses-to-hear-challenge-to-texas-trap-law/

Founded in 1973, Texas Right to Life is the oldest and largest Pro-Life organization in Texas. Recognized as the statewide leader of the Pro-Life movement in Texas, Texas Right to Life works through legislation and education to protect the rights of the unborn, persons with disabilities, the sick, the elderly, and the vulnerable through legal, peaceful, and prayerful means.

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