Texas officials threatened to take their legal fight to the U.S. Supreme Court. An abortion rights activist holds placards outside of the U.S. Supreme Court before the Court struck down a different Texas law placing restrictions on abortion clinics on June 27. | Mandel Ngan/AFP/Getty Images Federal court overturns Texas ban on abortion procedure

AUSTIN, Texas — A federal judge on Wednesday overturned Texas’ ban of a common second trimester abortion procedure, setting back the state's latest effort to limit abortion.

U.S. District Court Judge Lee Yeakel said that the ban on “dilation and evacuation” abortions, approved by the Texas Legislature in May, would force women seeking second trimester abortions to resort to riskier, invasive alternatives.


The Texas ban, part of a sweeping abortion law known as Senate Bill 8, "intervenes in the medical process of abortion prior to viability in an unduly burdensome manner," wrote Yeakel, a George W. Bush appointee, in his decision.

The ruling comes a year after the Supreme Court struck down a set of previous abortion restrictions in Texas and a decade after the Supreme Court upheld a ban on so-called partial birth abortions, another second trimester procedure. In his opinion, Yeakel pointed out the Supreme Court cited the availability of "D&E" abortions as evidence the partial birth restriction would not place an undue burden on women seeking the procedure.

Texas said it will appeal the decision to the 5th U.S. Circuit Court of Appeals, which has typically upheld the state’s previous attempts to restrict abortion. The ruling was issued on the same day an injunction blocking the law was set to expire.

"We will defend Senate Bill 8 all the way to the U.S. Supreme Court, if necessary," said Texas Attorney General Ken Paxton.

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In a “D&E” procedure, the fetus is dismembered before being removed. In a five-day trial on the Texas law earlier this month, attorneys for Texas and abortion providers challenging the law focused on a provision that would require doctors to carry out an alternative method of terminating a fetus before extracting it from the womb.

Eight states, including Texas, have passed bans on dilation and evacuation abortions; the bans face legal challenges in six of those states. Last month, an Alabama court also overturned the state’s ban on the procedure, saying it poses “significant health risks” to women who want an abortion.

Texas, in defense of the ban, said that it regulates only “the moment of the death” to ensure that the fetus experiences less pain during the procedure.

“The state has a legitimate interest in banning the living dismemberment of an unborn child,” said Darren McCarty, an attorney for the state, during closing arguments.

Abortion providers challenging the ban questioned the safety of alternative procedures sometimes used for second trimester abortions, including cutting the umbilical cord; injecting potassium chloride into the fetal heart; and using digoxin, a drug injected into a fetus to stop its heartbeat. Doctors they called as witnesses argued requirements for physicians to perform another procedure before extracting a fetus would result in increased complications such as infection.

In his opinion, Yeakel wrote that the state's "legitimate interest in fetal life" does not allow it to require an additional medical procedure "not driven by medical necessity" to complete a standard D&E abortion. He said that the alternatives would be particularly onerous in Texas, which already requires patients to wait 24 hours after a physician consultation to receive an abortion.

The ban “turns back the clock” on advances in medical care, said Janet Crepps, senior counsel at the Center for Reproductive Rights, during closing arguments for the abortion providers.

Crepps, who is also challenging similar bans in Kansas and Louisiana, said the case in Texas is a “flash point” for abortion rights. The decision could deter other states considering similar bans, she said in an interview.

“When legislatures come back in January, I hope that this will give them pause and make them think about whether this is how they want to spend legislative resources,” she said.

