978 F.3d 896
5th Cir.2020Background
- Texas SB8 (2017) criminalizes “dismemberment abortions,” a definition that encompasses the common dilation-and-evacuation (D&E) second-trimester procedure and thus effectively requires induced in utero fetal demise before D&E unless a medical emergency exists.
- Plaintiffs (multiple Texas abortion clinics and physicians) sued, alleging SB8 imposes an undue burden on the right to obtain a previability abortion; the district court held a five-day bench trial, found the law facially unconstitutional, and permanently enjoined enforcement.
- The State defended SB8 by identifying three methods to induce fetal demise before D&E: transabdominal digoxin injection, direct fetal intracardiac potassium chloride injection, and umbilical cord transection.
- The district court found each proposed method invasive, risky, logistically burdensome, often experimental or unsupported by data for <18 weeks LMP, and practically unavailable to most abortion providers — causing delays, added costs, and greater health risks.
- The Fifth Circuit applied the undue-burden framework (as articulated in Whole Woman’s Health), rejected the State’s attempt to narrow the test based on asserted state interests, and affirmed that SB8 imposes a substantial obstacle on women seeking D&E after 15 weeks LMP and is facially invalid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SB8 imposes an undue burden on the right to a previability abortion | SB8 forces medically unnecessary, invasive additional procedures before D&E, creating substantial obstacles, delays, and health risks | SB8 protects unborn life and medical ethics by requiring fetal demise; safe alternatives exist | Held: SB8 imposes an undue burden; its burdens outweigh minimal benefits and it effectively prohibits the common, safe D&E method after 15 weeks LMP |
| Proper legal test after June Medical: balancing (Whole Woman’s Health) vs. burdens-only (Roberts concurrence) | Whole Woman’s Health balancing test controls; courts must weigh benefits against burdens | June Medical’s narrow concurrence is controlling; undue-burden analysis should consider burdens alone | Held: Plurality/concurrence conflict means June Medical does not displace Whole Woman’s Health; balancing test applies |
| Are the State’s proposed fetal-demise methods safe, effective, and available alternatives? | These methods are additional, not alternative, procedures that are painful, invasive, delay care, carry risks, and are often infeasible or experimental for clinics | The procedures (digoxin, KCl, cord transection) can safely induce demise and are available | Held: District court’s factual findings that these methods are unsafe, unreliable, or unavailable are not clearly erroneous; they are substantial obstacles |
| Whether relief should be facially narrow or the statute severed/saved in part | Plaintiffs sought a permanent, facial injunction because SB8 affects a large fraction of relevant cases (all 15–20 week outpatient D&Es) | State urged narrowing/partial enjoinment to preserve constitutional applications | Held: Facial injunction appropriate; court will not rewrite statute and no reasonable narrowing construction exists |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (1973) (recognizes constitutional right to previability abortion)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (announces undue-burden standard for previability abortion regulation)
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (requires weighing a law’s benefits against its burdens in undue-burden analysis)
- June Medical Services, L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (split decision on undue-burden formulation; Court struck down admitting-privileges law)
- Gonzales v. Carhart, 550 U.S. 124 (2007) (upheld federal ban on intact D&E where other accepted second-trimester methods remained available)
- Stenberg v. Carhart, 530 U.S. 914 (2000) (invalidated statute that broadly banned D&E; stressed importance of preserving common, safe second-trimester methods)
- Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976) (struck down provisions that effectively barred commonly used second-trimester methods)
- Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019) (discusses when an abortion restriction is facially invalid as a substantial obstacle)
- Marks v. United States, 430 U.S. 188 (1977) (governs interpretation of fragmented Supreme Court decisions)
- Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985) (standard of review for factual findings: clear error / deference to trial judge)