The Texas House recently approved legislation that would, among other things, prohibit a second trimester abortion procedure it calls “dismemberment abortion,” known medically as “dilation and evacuation” or “D&E.” Judges have blocked similar laws in other states, including Alabama and Oklahoma. Unlike a so-called “partial-birth abortion” prohibition, upheld by the U.S. Supreme Court in Gonzales v. Carhart, (and also banned by the Texas bill), a ban on D&E takes away a more common abortion method that experts say is the safest way of terminating a second-trimester pregnancy. The law is likely to meet with the same judicial outcome as other similar laws. This column examines why Texas nonetheless insists on trying to pass this sort of law.
Dilation and Evacuation
The method of abortion at issue in the Texas statute is not for the faint of heart. It involves dismembering the fetus while it is still in the woman’s womb and removing its parts, piece by piece, through the birth canal. One Texas legislator described the procedure as drawing and quartering, an old (and torturous) method of execution.
The problem with prohibiting D&E is that it is the main second trimester method that is left after the banning of dilation and extraction (also called intact dilation and evacuation/“D&X”) in the federal “Partial-Birth Abortion Ban Act” (“PBABA”). One of the reasons that the U.S. Supreme Court upheld the PBABA, according to its opinion in Gonzales, was that the ban still left women with an alternative method to terminate their pregnancies.
Specifically, the Court in Gonzales said:
The conclusion that the [Partial-Birth Abortion Ban] Act does not impose an undue burden is supported by other considerations. Alternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe D&E. One District Court found D&E to have extremely low rates of medical complications. Another indicated D&E was “generally the safest method of abortion during the second trimester.”
Because women could still have a D&E, the PBABA did not leave them without good alternatives, as the Texas bill under consideration would. The Supreme Court also regarded the delivery of the fetus followed by its dismemberment outside the birth canal to be grotesque and barbaric in a way that would disturb women who learned, after having had the procedure, that their fetus had been subjected to such violence. Presumably, the Court implicitly accepted D&E as meaningfully distinct along this dimension.
The notion, accepted by the Court, that D&X is uniquely barbaric was questionable, to be sure. It is not obvious that dismembering a fetus after removal from the womb is more barbaric or terrible than dismembering it inside the womb and then removing its parts. Both methods are stomach turning and would likely upset people learning that they had undergone either one. Yet the Court has repeatedly held that women have the right to terminate their pregnancies prior to fetal viability, and banning D&E would seriously interfere with women’s ability to exercise that right, particularly after the passage of the PBABA, which banned D&X.
Why Pass Such Legislation?
Given that an all but inevitable constitutional challenge to the Texas law is likely to succeed, what could be motivating Texas legislators to try to pass the law in the first place? One hint lies in the fact that this prohibition is attached to a broader bill requiring burial or cremation of fetal remains, a requirement that is already part of existing law and that has been blocked by a federal judge. In addition, the bill prohibits the sale of fetal tissue and so-called “partial-birth abortion,” both of which are already prohibited by federal law, as noted above.
These redundancies provide a hint into the motivations of the legislators by showing that the goal of the law may not be to put an end to the procedures prohibited by the law. Knowing that the law will likely be blocked and/or that the law overlaps with existing legislation would deter lawmakers whose objective was to successfully regulate behavior in need of regulation. Instead, then, the point may be to communicate the legislature’s strong disapproval of abortion (or at least of second-trimester abortion) and, more specifically, to convey to the public the grotesque reality that is a second-trimester abortion, in which fetuses are dismembered (whether inside the womb or outside, as in a D&X). The law, in other words, is “speech” more than it is law.
To the extent that legislators seek mainly to speak rather than to regulate abortion practices, why do they want to have their say? What do they imagine will happen as a result of such speech? There are a few answers to this question. First, their hope may be that consumers of abortion services—women experiencing unwanted pregnancies and in their second trimester—will perhaps be moved by the legislation to take their pregnancies to term rather than abort. Learning that second-trimester abortions are disturbing affairs could potentially influence the behavior of those considering such abortions.
In addition, the hope may be to stir up opposition among the populace so that people perhaps demand that abortion providers close. We know that some number of doctors have stopped performing abortions because they are afraid of the threats and harassment that they encounter as part of the job. Susan Wicklund eloquently describes what such doctors face in her book, This Common Secret. A law highlighting the grotesqueness of a procedure could motivate members of the public to initiate the sort of harassment and otherwise intimidating behavior that could, in turn, induce providers to stop performing the D&E (and D&X) procedure.
Finally, Texas may be doing something beyond speech. It may be preparing for lower federal courts and a Supreme Court that will be shaped by President Trump. Though there are likely not currently the votes to uphold a ban on the D&E method of abortion in the Supreme Court, this may change if another Supreme Court vacancy arises during Trump’s time in office. And before that happens, Trump will have the opportunity to fill vacancies in the lower federal courts with people who are sympathetic to efforts to ban abortions of different types (and perhaps even to efforts to ban it altogether). Though likely to be overruled, at least for the time being, lower court rulings upholding anti-abortion legislation could give a boost to the anti-abortion movement and persuade people on the fence that they ought to be against abortion as well.
Is it legitimate for legislators to use legislation as a means of communicating a message when it is clear that the law will not survive judicial scrutiny? Is legislation an appropriate site for speech? My tentative answer is that “it depends.”
If the legislation is likely to be in effect for some period of time before being enjoined by a court, then it seems illegitimate to pass legislation that is plainly unconstitutional. It sends a message in a much more coercive manner than most communications by virtue of its ability to force people to conform to its strictures. Doctors may refuse to perform abortions pending a court’s decision about the legislation, and women may feel chilled from exercising their right to terminate a pregnancy by a law that makes such a termination illegal.
If, on the other hand, there will be no lag time between passage of the law and its invalidation, then I would have less of a problem with using legislation to speak. Legislatures sometimes pass laws that simply communicate an idea (e.g., that “life begins at conception”) without mandating or prohibiting any conduct as a result. An unconstitutional law like the ban on D&E could function like that, and I could see that as a legitimate form of government speech.
Still, I would prefer that people who oppose abortion simply speak about that opposition in ways non-legislators speak: by giving speeches, by holding rallies, by writing articles and books, etc. Using the law to make a point is risky, given that the law binds people’s conduct (in addition to communicating a potential message). Given that some anti-abortion advocates sometimes resort to violence, I should say that I regard legislative speech as superior to violence. It at least works within the system, though in a manner that challenges the ordinary rules of that system. The final score I would give such legislation is therefore a “potentially legitimate but generating discomfort and possible problems.”