Whole Woman's Health v. Paxton, No. 17-51060 (5th Cir. 2021)
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The Fifth Circuit, en banc, vacated the district court's permanent injunction declaring Senate Bill 8 (SB8), which prohibits a particular type of dilation and evacuation (D&E) abortion method, facially unconstitutional.
The district court held that SB8 imposes an undue burden on a large fraction of women, primarily because it determined that SB8 amounted to a ban on all D&E abortions. However, viewing SB8 through a binary framework—that either D&Es can be done only by live dismemberment or else women cannot receive abortions in the second trimester—is to accept a false dichotomy. Rather, the en banc court concluded that the record shows that doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use. The en banc court also concluded that the district court, in permanently enjoining SB8, committed numerous, reversible legal and factual errors: applying the wrong test to assess SB8, disregarding and misreading the Supreme Court's precedents in Planned Parenthood of Southeastern Pennsylvania v. Casey and Gonzales v. Carhart, and bungling the large-fraction analysis. Because remanding to the district court would be futile as the record permits only one conclusion, the en banc court concluded that plaintiffs have failed to carry their heavy burden of proving that SB8 would impose an undue burden on a large fraction of women.
This opinion or order relates to an opinion or order originally issued on August 21, 2020.
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