The 5th U.S. Circuit Court of Appeals on Aug. 18 upheld a Texas law banning dismemberment abortions. Though this is undoubtedly a pro-life victory, it also serves as a reminder of just how reflexively pro-abortion many courts (not this one, obviously) have become thanks to the Supreme Court’s dereliction of duty on this issue.
The Texas law, which was passed in 2017, has never been enforced. It was blocked by a federal district judge within just months of Gov. Greg Abbott signing it into law, and it was initially blocked by a three-judge panel of the 5th Circuit before Texas was granted a rehearing by the full court.
The law only bans one form of abortion: dilation and evacuation. As Nicole Russell wrote for the Washington Examiner in 2018, “During the procedure, a doctor uses forceps to essentially tear the limbs of the baby off in order to extract them from the womb.” The procedure is typically used to end a pregnancy in the second trimester, meaning the unborn baby who is being dismembered is between 13 and 28 weeks old.
Texas’s law does not ban all abortions in the second trimester. It does not even ban all dismemberment abortions, which “abortion rights advocates” falsely argued in court while trying to discredit the law. It is a narrow prohibition, and yet, the courts had not allowed it to take effect for more than four years after it was signed — and it still may remain effectively in abeyance if the abortion supporters who lost this challenge try to appeal the decision to the Supreme Court.
The Supreme Court repeatedly has appeased pro-abortion activists (including almost the entirety of the Democratic Party establishment) when it comes to abortion, disregarding the Constitution to expand and protect the abortion industry. In cases stretching from Roe v. Wade in 1973 to Planned Parenthood v. Casey in 1992 to June Medical Services v. Russo in 2020, the high court has dashed the hopes of pro-life constitutionalists. That's why lower courts, such as the district judge who was rightly overruled this week, continue to enjoy cover for even the most extreme pro-abortion jurisprudence.
Confused lower courts will continue such jurisprudence until the Supreme Court does its duty by issuing a new, clear standard for abortion laws.