280 F. Supp. 3d 938
W.D. Tex.2017Background
- Plaintiffs (Texas second‑trimester abortion providers and physicians) sued under 42 U.S.C. § 1983 challenging a Texas law (SB 8 §6) that prohibits "dismemberment abortions" unless fetal demise is induced in utero before the evacuation phase of a standard D&E, with criminal penalties for violators.
- The law's operative effect is undisputedly to require physicians to ensure fetal demise before performing the common outpatient standard D&E used after ~15 weeks.
- Plaintiffs argue the requirement forces medically unnecessary, invasive, sometimes experimental procedures (digoxin, potassium‑chloride injection, or umbilical‑cord transection), causes delays, added trips/costs/risks, and will lead many providers to stop offering D&Es.
- State (Defendants) contends the Act is a permissible regulation promoting respect for fetal life and that fetal demise can be achieved safely by digoxin, KCl, or cord transection, so the Act does not ban previability D&E or impose an undue burden.
- After a bench trial, the court found none of the proposed fetal‑demise methods is reliably safe, feasible, or widely available for clinic providers, that the Act increases risk, delay, cost, and invasiveness, and that these burdens—alone and combined with Texas' 24‑hour waiting rule—are substantial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Act imposes an undue burden on previability abortion access | The requirement to induce fetal demise before evacuation creates substantial obstacles (medical risk, extra visits/delay, cost, provider withdrawal) | The Act regulates procedure humanely; fetal demise can be induced by digoxin, KCl, or cord transection, so D&Es remain available | Held unconstitutional: the Act places an undue burden and is facially invalid |
| Whether the law effectively bans the standard previability D&E | The law's effect is to ban standard D&E absent induced fetal demise, reducing availability | The law permits D&E if fetal demise is induced beforehand using available methods | Held the Act, though framed narrowly, in effect burdens and limits standard D&E consistent with prior precedent rendering similar laws invalid |
| Are proposed fetal‑demise methods safe, feasible, and widely available | These methods are often untested, risky, technically difficult, and would require additional training or hospital resources, making them impractical | The methods are medically accepted alternatives and therefore the law does not create a substantial obstacle | Held the methods are not feasible or safe in many instances and would create substantial obstacles |
| Application of Supreme Court precedent (Casey/Gonzales/Stenberg/Whole Woman’s Health) | Precedent protects previability abortion from substantial obstacles; laws that in effect ban standard D&E are undue burdens | State relies on Gonzales to argue narrow bans can stand if alternatives exist | Held controlling precedent (Stenberg, Gonzales, Casey, Whole Woman’s Health) requires finding the Act unconstitutional where it effectively burdens previability D&E |
Key Cases Cited
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (reaffirmed previability right and undue‑burden standard)
- Stenberg v. Carhart, 530 U.S. 914 (state law that effectively bans standard D&E is an undue burden)
- Gonzales v. Carhart, 550 U.S. 124 (upheld narrow federal partial‑birth ban where alternatives remained available)
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (courts must weigh burdens against benefits in undue‑burden analysis)