On Monday, November 5th in New Orleans, the day prior to the much anticipated national midterm elections, an important case was quietly heard in The United States Court of Appeals for the Fifth Circuit in New Orleans. The Texas Dismemberment Abortion Ban was on appeal after a Federal District Court out of Austin placed an injunction on the law in November of 2017. The law prohibits one barbaric type of abortion where a child is dismembered while his or her heart is beating and is one of several similar state laws nationwide.
Though there are several Texas Pro-Life policies in court, this case over the Dismemberment Abortion Ban is the most significant for many reasons. Firstly, the case presses the central issue for the Pro-Life movement of how far states may act on their compelling interest to protect preborn Life. Secondly, this case provides a chance for the new composition of the Supreme Court to continue the logic already begun in 2007. The notion that states have a compelling state interest to protect preborn Life was acknowledged in Roe v. Wade itself. However, the point was of little consequence until Justice Kennedy recognized the concrete policies states may enact to further that interest in Planned Parenthood v. Casey. In 2007, Kennedy went so far as to confirm that specific abortion procedures can be prohibited for the sake of protecting innocent human Life. Today, many states have passed dismemberment bans with the intent for Kennedy to extend that judicial logic. As the typical “swing vote” for Pro-Life cases, Kennedy was the highest hurdle to victory in the past, however, this has allowed Chief Justice Roberts to avoid specificity on his views. The case over dismemberment abortions is a significant opportunity to show exactly where the court stands on recognizing the Right to Life of the preborn after the retirement of Justice Kennedy and the introduction of two Supreme Court Justices (Gorsuch and Kavanaugh), who have yet to opine on a major abortion-related case.
Finally, this case over Texas Pro-Life law is significant because several similar laws are making their way through federal courts, and a Supreme Court ruling on this policy is likely. The Eleventh Circuit recently ruled against an Alabama ban on dismemberment abortions. The ruling, which discouraged the movement, also increased the chance of a Supreme Court hearing. If the Fifth Circuit rules in favor of the Texas law, there would be a “circuit split” on this issue – contradicting opinions by two federal circuit courts. A circuit split almost guarantees Supreme Court taking up the case.
While the majority of the 16 active judges on the Fifth Circuit are friendly to allowing states to protect the rights of the preborn, each case draws a randomly chosen three-judge panel. In this particular case, the panel included one Trump appointee (Judge Willett) and two Clinton appointees (Chief Judge Carl Stewart and Judge James Dennis). In the case of a bad ruling, the Texas Attorney General’s office could ask for an en banc rehearing by the entire court which, if granted, would significantly improve the chances for a favorable ruling.
The Pro-Life movement may have to wait several months before the outcome is clear. We are still waiting for a ruling on a case heard back in June on the state’s authority to terminate Planned Parenthood’s Medicaid contract. Unfortunately, a drawn-out timeline would lower the likelihood that the case would reach the Supreme Court by the end of this term in June. Pro-Life activists across the country are waiting to see how the newly remade Supreme Court will handle these significant cases that could shape Pro-Life plans for the next line of attack against Roe v. Wade and the injustice of abortion.
All this may have been overshadowed by the noise of the midterms the following day, however the long game is not new to the Pro-Life movement. Pro-Life activists are relentless in our dedication to see the end of elective abortion and will not let any obstacle take us off course.
Follow Texas Right to Life on social media and at TexasRightToLife.com for updates and developments in this historic lawsuit.