From NRO’s Bench Memos:
By ED WHELAN
August 19, 2021 11:24 AM
In an important decision yesterday in Whole Woman’s Health v. Paxton, the en banc Fifth Circuit ruled by a vote of 9 to 5 that a Texas law that generally prohibits the live-dismemberment version of the dilation-and-evacuation (D&E) abortion method is permissible under the Supreme Court’s abortion precedents.
Judges Jennifer Walker Elrod and Don Willett jointly authored the lead opinion, which was joined by Judges Edith Jones, Jerry Smith, James Ho, Kurt Engelhardt and Cory Wilson. (Because it garnered only seven of the fourteen votes, it is a plurality opinion, not a majority.) Chief Judge Priscilla Owen wrote an opinion concurring in the judgment, and Judge Catharina Haynes also concurred in the judgment (without opinion). Judge Ho added a concurring opinion. Judge James Dennis, joined by Judges Carl Stewart and James Graves, wrote a long dissent, and Judge Stephen Higginson, joined by Judge Gregg Costa, wrote a short one. (Judges Leslie Southwick, Kyle Duncan, and Andy Oldham all recused.)
Here is an overview:
1. The Texas law, enacted in 2017, provides: “A person may not intentionally perform a dismemberment abortion unless the dismemberment abortion is necessary in a medical emergency.” It defines “dismemberment abortion” as:
an abortion in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of a the unborn child’s body to cut or rip the piece from the body.
Like the other D&E versions, live-dismemberment abortion is commonly used in the 15th week of gestation and later.
2. My high-level summary of the Elrod/Willett plurality opinion:
The Texas law prohibits only one particular D&E method and only when a medical emergency does not exist. Doctors can safely use other D&E methods that are already in widespread use.
The district court’s conclusion that the law is a complete ban on standard D&E abortions rests on four errors, each of which independently compels reversal:
a. The district court misapplied Casey’s undue-burden standard by balancing the law’s benefits against its burdens. Under the Chief Justice’s controlling opinion in June Medical, courts should not engage in such balancing. (Pp. 9-14.)
b. The district court slighted or entirely disregarded the state’s interests, even though the Supreme Court had accepted all of these interests in its 2007 ruling in favor of the federal partial-birth abortion law in Gonzales v. Carhart. (Pp. 14-19.)
c. The district court’s myriad and fundamental legal errors mean that no deference is owed to its factual findings. But even with deference, those findings would not demonstrate an undue burden.
The district court incorrectly concluded that there is only one kind of standard D&E abortion and thus wrongly held that the law would result in a complete ban on D&E abortions. It failed to apply the direct teachings of Gonzales. The record shows that performing a D&E that complies with the Texas law, using either suction or digoxin, is safe, effective, and commonplace. (Pp. 19-33.)
d. In a facial challenge, the plantiffs bear the heavy burden of showing that an abortion law would be unconstitutional in a “large fraction of cases.” The district court botched both the numerator and the denominator in the fraction. (Pp. 33-36.)
3. In her opinion concurring in the judgment (pp. 38-53), Judge Owen agrees broadly with the Elrod/Willett opinion. In her view, it is unnecessary to decide whether the Chief Justice’s concurring opinion in June Medical governs how the undue-burden standard applies, for, as she explains, the Texas law is permissible under both the Chief Justice’s approach and the balancing approach.
4. In his concurring opinion (pp. 54-65), Judge Ho explains that the Supreme Court’s abortion precedents are “unequivocal” on the principle that judges “have no business deciding which scientists are right and which are wrong” and, drawing on some very interesting historical examples, warns against “blindly” following the scientists:
Someday, scientists may look back on today’s abortion debates as shocking and barbaric—just as we look back in disbelief at those who ridiculed and ostracized proponents of handwashing and sterilizing surgical instruments to prevent disease and infection.
Ho also points out that Texas abortion law is “more permissive than the overwhelming majority of laws around the world.”
5. Judge Dennis’s dissent (pp. 66-105) contends that the plurality opinion “ignores on-point Supreme Court precedent in multiple ways” and “fails to defer to the district court’s well-reasoned and well-supported factual findings.” He also disputes its application of the “large fraction” analysis for a facial challenge.
6. In his dissent, Judge Higginson argues that, given the plurality’s view that the district court applied the wrong standard, the court should have remanded the case to the district court. He also indicates his view that the Texas law is invalid under Supreme Court precedents.