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Another Abortion Access Crisis Looms in Texas

An appeals court is upholding a ban on a common second-trimester procedure

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Image: Sergio Flores (Getty Images)

The 5th Circuit Court of Appeals has upheld a Texas law banning dilation and evacuation abortion (D&E) after the first 15 weeks of pregnancy, the first federal court in the nation to do so. The move comes after a federal court deemed the ban unconstitutional just last year—the reversal effectively targets the most common method of abortion used in second-trimester pregnancies.

Doctors who violate the ban will face up to two years in prison.

The law was first passed in 2017, but was blocked by court battles. A federal judge in the lower courts had previously invoked the “undue burden” test, ruling that the law would amount “to a ban on all D&E abortions.” But on Wednesday, the appeals court argued that doctors could still perform the procedure while complying with the legislation—which requires doctors to first stop the fetus’s heart by inserting a large needle into the abdomen or cervix—handing the anti-abortion movement a victory.

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The ruling is just one of many looming crises for abortion access in Texas. S.B. 8, which bans abortion after six weeks of pregnancy—before many people even know they’re pregnant—is scheduled to go into effect on September 1. According to Planned Parenthood, the law would also allow anyone to “sue doctors and others who help a Texan access abortion in the state.” This effectively turns anyone with an agenda into a bounty hunter for people who get abortions and those who perform them.

These laws are just another way for anti-abortion lawmakers and activists to challenge Roe v. Wade, chipping away at abortion rights little by little without explicitly outlawing abortion. (Though the effect can be virtually the same.) They also function as a way for abortion foes to surround abortion with stigma and shame, and attempt to convince people that a common healthcare procedure is dangerous and immoral. D&E is a surgical abortion option in which a patient’s cervix is dilated and the fetus is removed via suction and with the help of additional surgical tools, like forceps, if necessary. It is a safe and trusted procedure with minimal complications, but it has been villainized by the right, who refer to the method as “partial-birth abortion,” a term that is deliberately inflammatory and, according to the Guttmacher Institute, “has no precise medical definition.”

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“Texas has been hellbent on legislating abortion out of existence, and it is galling that a federal court would uphold a law that so clearly defies decades of Supreme Court precedent,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “At a time when the health care needs of Texans are greater than ever, the state should be making abortion more accessible, not less.”

Other states—Arizona, Georgia, Kentucky, Michigan, and Mississippi—have already adopted a slew of similar laws based on medically unfounded anti-abortion hogwash. This move by the Fifth Circuit only emboldens them, and any other states that wish to follow suit. And with a majority conservative Supreme Court, the future of abortion rights in the United States has only become increasingly bleak.

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But abortion funds are never unprepared for battles like this one. Organizations like Lilith Fund and Texas Equal Access Fund, nonprofits that provide financial assistance and emotional support for those seeking abortions in Texas, are implementing donation drives with extreme urgency as they await a future that may require them to help people seek abortions out of state.

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This is work that continues no matter what the law says—even with Roe on the books, even without S.B. 8, access to abortion is still something advocates fight for every day.

“I want people who need abortions to know that they can depend on abortion providers, funds, advocates to not only fight for the right to a legal and safe abortion, but a world where abortion is accessible,” said Paige Alexandria, a board member and former client of Lilith Fund, in the organization’s latest video. “Regardless of your zip code or how much money you make.”