A federal appeals court has upheld a Texas state ban on a common method of abortion used during the second trimester of a pregnancy, stating that the district court who ruled it unconstitutional committed “numerous, reversible legal and factual errors.”

The U.S. Appeals Court for the Fifth Circuit ruled Wednesday in a case concerning Senate Bill 8, a law the Texas Senate passed in 2017 that has yet to go into effect to ban dilation-and-evacuation abortions and punish doctors who violate the prohibition with felony charges.

Last year, a district court issued a permanent injunction against S.B.8, ruling it “unduly burdens a woman’s constitutionally protected right to obtain a pre-viability abortion” while also forcing abortion providers “to act contrary to their medical judgment.”

The appeals court on Wednesday vacated that injunction, saying the district court was incorrect to view S.B.8 as a burden on women as “doctors can safely perform D&Es and comply with S.B.8 using methods that are already in widespread use.”

“The plaintiffs have failed to carry their heavy burden of proving that S.B.8 would impose an undue burden on a fraction of women,” the judges said in their ruling.

The case is expected to eventually end up before the Supreme Court and is one of several concerning laws that seek to limit or outright ban abortions in Republican-controlled states.

The Guttmacher Institute, a sexual and reproductive health and rights organization, said this form of abortion is safe and accounts for the majority of second-trimester abortions in the United States, and has come under attack in an effort to limit access to abortion.

“By restricting the most common method of second-trimester abortion, policymakers hostile to abortion would take a significant step forward in their campaign to eliminate abortion access in the United States,” the institution said. “As with most abortion restrictions, the consequences would fall hardest on those already struggling to obtain access to abortion.”

The ruling was made as another Texas law that effectively bans most abortions after six weeks of gestation, often before one knows they are pregnant, is set to go into effect in September.

Amy Hagstrom Miller, president of Whole Woman’s Health, one of the plaintiffs in the case, framed S.B.8 as a way to prohibit access to abortions.

“As the six-week ban is looming, it’s even more apparent that these abortion laws are about making abortion completely inaccessible,” she said in a statement. “Texas lawmakers are coming at us from both ends and will not stop until abortion is illegal.”

Dr. Bhavik Kumar, an abortion provider with Planned Parenthood Center for Choice, condemned the Wednesday decision as it “threatens the safety of my patients and punishes doctors for using our best medical judgement, training and expertise.”

“I see the real-life consequences of these politically motivated restrictions. I know firsthand that any time healthcare is restricted, people suffer — and their families and communities are also irreparably harmed,” Kumar said.

However, Elissa Graves legal counsel for the conservative Christian nonprofit Alliance Defending Freedom, said the court “was on solid ground” when it reversed the lower court’s decision.

“Texas has the right to respect the life of unborn children,” she said in a statement calling the form or abortion gruesome. “The law is both humane and constitutional.”
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