Federal Trial Court Strikes Down Texas Dismemberment Abortion Ban

Thomas M. Messner, J.D.  

A federal trial court in Austin has struck down a Texas law prohibiting the practice of dismemberment abortion. The court issued its ruling one day before Thanksgiving.


The law struck down by the court, known as S.B. 8, provides that “[a] person may not intentionally perform a dismemberment abortion unless the dismemberment abortion is necessary in a medical emergency.” Under S.B. 8, an abortionist seeking to use the dismemberment method of abortion, also known as a “dilation and evacuation” abortion or simply “D&E” abortion, would first have to kill the baby and then dismember the baby.


The D&E method of abortion was discussed in graphic detail by U.S. Supreme Court Justice Anthony Kennedy in his dissenting opinion in the 2000 Supreme Court case of Stenberg v. Carhart. The following bullet points set out quotations from Justice Kennedy’s dissenting opinion in that case (I have omitted internal citations).


  • Justice Kennedy: “As described by Dr. Carhart, the D&E procedure requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.”


  • Justice Kennedy: “Dr. Carhart uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body.”


  • Justice Kennedy: “The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn [] limb from limb.”


  • Justice Kennedy: “The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off.”


  • Justice Kennedy: “Dr. Carhart has observed fetal heartbeat via ultrasound with ‘extensive parts of the fetus removed,’ and testified that mere dismemberment of a limb does not always cause death because he knows of a physician who removed the arm of a fetus only to have the fetus go on to be born ‘as a living child with one arm.’”


  • Justice Kennedy: “At the conclusion of a D&E abortion no intact fetus remains. In Dr. Carhart’s words, the abortionist is left with ‘a tray full of pieces.’”


Seven years later, writing for the Court in the 2007 Supreme Court case of Gonzales v Carhart, Justice Kennedy once again described the D&E abortion procedure in graphic detail.


In the current case, known as Whole Woman’s Health v. Paxton, Texas identified three potential methods of causing fetal demise before dismembering the baby. However, following a five-day bench trial, the federal trial court concluded that, “although the Act advances a valid state interest, the Act ‘has the effect of placing a substantial obstacle in the path of a woman’s choice, [and therefore] cannot be considered a permissible means of serving its legitimate ends’” (quoting Planned Parenthood v. Casey at page 877).


Before trial commenced in this case, the legal commentator Margot Cleveland wrote that, “even if the abortion providers win following a trial, the pro-life cause will have succeeded in laying bare the violence of abortion—both to the public and later to the most likely destination, the U.S. Supreme Court.” In a statement following the district court ruling, Texas Attorney General Ken Paxton agreed, stating that “[a] five-day trial in district court allowed us to build a record like no other in exposing the truth about the barbaric practice of dismemberment abortions.”


Texas has already filed an appeal of the district court decision with the U.S. Court of Appeals for the Fifth Circuit. A decision from the Fifth Circuit could then be appealed to the U.S. Supreme Court.


Thomas M. Messner is a Senior Fellow in Legal Policy with the Charlotte Lozier Institute.


Sign up to receive email updates from the Charlotte Lozier Institute.