Texas Republicans Have Cleared the Path to End Roe v. WadeRoundup
tags: conservatism, Roe v. Wade, abortion, Texas
Mary Ziegler, a professor at the Florida State University College of Law in Tallahassee, is the author of Abortion and the Law in America: Roe v. Wade to the Present.
A major confrontation on the abortion battlefield looms this fall, when the Supreme Court is expected to hear arguments on whether Mississippi can ban abortion after 15 weeks. That’s roughly nine weeks before viability, the point at which states are now allowed to forbid abortion. To uphold Mississippi’s law, the court would have to eliminate its own viability rule or reverse Roe v. Wade altogether.
Given the composition of the court, there is a real chance the justices may overthrow Roe. But there is also the possibility that the court, for institutional or political reasons, may not yet want to upend that 1973 decision, which found the Constitution protects a woman’s right to have an abortion without undue government interference.
What then? A recent ruling by the United States Court of Appeals for the Fifth Circuit seems tailor made for a Supreme Court that wants to look as if it cares about precedent while shooting a hole through that right. The appellate court relied on a past Supreme Court ruling to give leeway to the Texas Legislature to restrict a certain abortion procedure even though there was uncertainty about the medical consequences of the stricture.
Texas is one of several states that functionally ban dilation and evacuation, the safest and most common abortion procedure used in the second trimester. In performing the procedure, a doctor dilates the cervix and then removes a fetus using forceps and possibly suction.
The Texas law at issue in the case, Whole Woman’s Health v. Paxton, prohibits what the Fifth Circuit called “live dismemberment with forceps,” requiring doctors to ensure that fetal death occurs before an evacuation takes place.
Texas argued that the additional procedures it requires to guarantee fetal death were safe and effective, especially the use of digoxin, a heart medication that can also stop a fetal heartbeat. The state also asserted that experimental methods, such as injecting potassium chloride directly into the fetal heart or cutting the umbilical cord, would not threaten patients.
Abortion rights supporters say these procedures are unreliable, untested, unsafe and often unavailable. They add that Texas has essentially criminalized what has been the go-to abortion technique in the second trimester — dilation and evacuation without the additional steps to cause fetal demise.
This law was teed up by abortion opponents to build on their last major Supreme Court victory, a 2007 decision that ended fights over the late-term procedure they called partial-birth abortion. From the mid-1990s to the early 2000s, Congress and 21 states outlawed that uncommon procedure, which some critics compared to infanticide. Notably, the law passed by Congress did not include an exception for the protection of a pregnant woman’s health — a flash point in the subsequent litigation.
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