Dilation & evacuation — also known as a D&E — is the most common way of performing an abortion in the second trimester. But a federal appeals court on Wednesday upheld a law banning it in Texas, which could make the state the first in the nation to implement a ban on the procedure.
Here is what you need to know about the procedure, the litigation surrounding it, and the implications this has on reproductive rights.
What is a D&E?
After 12 weeks gestational age (or, eight weeks after a person could know they were pregnant), D&E is the medical standard for abortion care. In the procedure, the cervix is dilated, and then a vacuum is used to remove tissues from the uterus. While the procedure remains legal should it be needed after a miscarriage after the first trimester, the U.S. Court of Appeals for the Fifth Circuit has moved to make it illegal when needed for abortion care.
A D&E involves no surgical incisions and is performed in an outpatient setting. The procedure itself takes about 30 minutes to perform, and patients can go home afterwards. There may be cramping and soreness for a few days following the procedure, which can typically be managed well with over-the-counter medications. Some bleeding and spotting may continue for up to two weeks.
According to the American College of Obstetricians and Gynecologists (ACOG), one in 10 abortions performed in the United States occur in the second trimester.
How did this case come about?
In 2017, the Texas legislature passed Senate Bill 8, which required all abortion providers to bury fetal remains, banned fetal tissue from abortion from being donated for scientific research, and then, through a later amendment, effectively banned D&E procedures for abortion care by requiring them to be performed only after “fetal demise,” or the medically induced “death” of a fetus.
Abortion providers in Texas then sued the state, arguing that the extra requirement effectively amounted to a ban on D&E, widely known as the safest second trimester abortion care procedure, thus effectively banning second trimester abortion. The law never went into effect as it faced legal battles.
A three-judge panel from the Fifth Circuit ruled in October 2020 that D&E bans were unconstitutional. Weeks later, however, the court vacated its own decision to ensure that the case could be heard before the court’s full panel of judges, and the Fifth Circuit reheard oral arguments in the case of Whole Woman’s Health v. Paxton on January 21.
Targeting certain types of abortion procedures is a somewhat new legislative tactic. It’s a strategy to find more ways to effectively ban abortion for more people despite Whole Woman’s Health v. Hellerstedt, a 2016 case in which the U.S. Supreme Court decided the restrictions on abortion providers that do not have to do with medical procedures or practices impose an undue burden on a patient’s ability to access abortion. The law in question in Whole Woman’s Health v. Hellerstedt also came out of Texas. When it went into effect, it shuttered more than half of the abortion clinics in the state overnight.
Moving away from laws that focus on providers and practices to laws that look at specific kinds of abortion procedures is a whole different game — there is currently no legal precedent for the constitutional right to specific types of abortion procedures.
What other methods are there for performing an abortion in the second trimester?
According to the Guttmacher Institute, D&E procedures currently account for 95 percent of all abortions performed in the United States after the first trimester. According to ACOG, it is the preferred method of abortion care after the first trimester because it poses the fewest medical risks to patients.
Without access to D&E or dilation and extraction, the remaining method of abortion in the second trimester according to the National Abortion Federation’s clinical practice guidelines would be induction, in which medications are utilized to trigger “fetal demise” and then start labor, so that a patient would then physically deliver a fetus that is no longer viable.
What is “fetal demise” and how does it relate to this case?
At the core of the issue regarding the Texas law — SB 8 — is the concept of “fetal demise.” SB 8 works to effectively ban D&E procedures by requiring that physicians performing them first perform an additional — and, clinicians say, completely medically unnecessary — procedure to guarantee “fetal demise” before a “dismemberment abortion” (which is not a medically recognized term) can be performed. To guarantee “fetal demise,” which is also not a medical term, a physician is supposed to perform a procedure to halt cardiac activity before the D&E. This is typically done through an injection into a pregnant person’s abdomen or cervix. A doctor would then be legally required to guarantee that cardiac activity has ceased before continuing with the D&E procedure.
But abortion care providers say that this additional procedure places an undue burden on both doctors and patients both in accessing this form of abortion care. Not only is “fetal demise” not medically necessary before performing a D&E, they say — and in the second trimester, a fetus is not viable outside of the uterus — but it also cannot be guaranteed, thus forcing clinicians into a situation where they could be subject to criminal charges.
The only exception for providers to the “fetal demise” law? A medical emergency that immediately jeopardizes the life of the pregnant person.
Because “fetal demise” cannot be guaranteed and is not necessary to perform a D&E, SB 8’s requirement effectively forces physicians from being able to provide them for abortion care patients without expressly saying that the procedure itself is being banned. In fact, the term “dilation and evacuation” does not even appear in SB 8.
Rachel Rebouché, a law professor at Temple University and an expert on reproductive rights case law, told The 19th that in this way, Texas has “really been an innovator” when it comes to finding ways to legislatively block access to abortion care. D&E has remained as the predominant form of second trimester abortion after the Supreme Court ruled in 2007 in Gonzalez v. Carhart that bans on the procedure known as dilation and extraction were not unconstitutional — largely because D&E was more widely available and still accessible.
“D&E is what physicians rely on because of Gonzalez,” said Rebouché — and by trying to ban that procedure by focusing on the concept of incorporating fetal demise is “in step with the personhood movement,” which asserts that from conception on, an embryo and then fetus is entitled to the same rights as a living person.
Insisting on fetal demise “imbues the fetus with a sense of life that is not medically indicated. There is no reason to stop a heart unless you feel like the fetus will feel pain or have some cognition of the experience, which is not medically true,” Rebouché said.
Rebouché adds that fetal demise is also “unnecessary — it adds cost, time, and an additional step to the abortion process that typically providers aren’t trained in, so it is probably also logistically unnecessary.”
Is this the end of SB 8’s legal battle?
The Fifth Circuit’s ruling will likely be appealed by the legal team for Whole Woman’s Health, a network of abortion clinics operating in Texas, Maryland, Indiana, Minnesota and Virginia, which sets it up to potentially be heard by the Supreme Court. Should this happen, the conservative majority Court would have the opportunity to decide whether there is any kind of constititonal guarantee to specific kinds of abortion procedures, a decision that could spur lawmaking around abortion regulation nationwide.
Given that the Supreme Court recently agreed to hear Dobbs v. Jackson Women’s Health Organization, a case in which the state of Mississippi seeks to ban all abortion after 15 weeks gestational age, Rebouché said that things don’t “bode well for second trimester abortion.” She explained that since SB 8 another opportunity for the Supreme Court to think about whether abortion is constitutionally guaranteed before a fetus could survive outside of the uterus. Should the court either uphold the Mississippi law or strike it down but clarify that all previability bans are not necessarily unconstitutional, there would remain a door open to use the Texas law as a means of explaining when such a ban could be constitutional.
Mississippi’s law would only impact one abortion provider in the state, so there is a legal argument to be made that there is no substantial burden placed on abortion care patients as losing access to one provider is not excessively prohibitive. But the Texas law provides a whole new set of legal questions, including whether banning a method specifically could be seen as something constitutionally permissible. Opening the door for other previability bans to stand could also mean that “all kinds of laws that were considered unconstitutional in previous eras could not be constitutional.”
As an example, Rebouché points to the uptick in reason-based abortion bans, or those that restrict abortion if the state determines that a person is ending a pregnancy because of the sex, race or prenatal diagnoses of a fetus. Because abortion for these reasons comprises a small percentage of total abortion procedures, the Court could deem that these laws are constitutional since they are not overly onerous.
“You can see a trajectory with this case and others in the pipeline where if previability bans are constitutional, than most abortion restrictions stand,” Rebouché said.
What does this mean for other states in the meantime?
As Rebouché pointed out, Americans United for Life — the largest lobbying organization of the anti-abortion movement — has long circulated a legislative handbook to state lawmakers, with draft model legislation in it for them to try to introduce in their home legislatures. When one state is able to successfully pass and then legally defend a new kind of abortion restriction, many other states typically soon follow suit.
“There is a signalling thing that happens where there is a very powerful lobby that puts together legislation for constitutional challenges and then pushes the boundaries of what can be banned or prohibited,” said Rebouché. What just happened with the Fifth Circuit in Texas is “right in step with this strategy” — a strategy that has been in the works for years. (SB8 was first introduced in 2017.)
“This is all part of an overlapping strategy — the ‘heartbeat’ bills, what’s happening in Mississippi, what’s happening in Texas,” Rebouché said. “It’s just a race to see who can get to the Supreme Court first.”
From the Collection