Federal Appeals Court Strikes Down Texas Abortion Bill as Unconstitutional

Case Analysis of Rasul v Bush
Image Source: Network World

The bill was initially signed in 2017 by the governor Greg Abbott. It was met with backlash and the plaintiffs are eight licensed abortion clinics and three abortion providers who challenged the bill in federal court. 


The appeal was regarding the Texas Senate Bill 8 and its constitutionality. A number of doctors and licensed abortion clinics challenged this law on the basis of the argument that it imposes an undue burden on the women’s right to obtain an abortion before fetal viability.

This is in violation of the Fourteenth Amendment rights. The district court has declared the act “facially unconstitutional” and a temporary restraining order was granted in August 2017. The state appealed to the Court of Appeals, the fifth circuit. 

The Texas Senate Bill 8 

The bill contains a clause which mandates women to go through an additional and medically unnecessary procedure to cause the fetal demise.

The normal procedure for second-trimester abortions entails the dilation and the evacuation commonly called the D&E. A medical practitioner, who fails to comply with the extra process that has been laid down by the act, will be subject to criminal penalties. 


The state mainly argued that the bill does not block or restrict the access of women to receive an abortion but the only added clause in the bill is that the fetal death be caused in vitro. In addition, the state stated that the objective of the bill in question is to respect the life of the unborn while achieving to promote integrity and ethics in the medical profession. 

 This argument was rebutted by the plaintiff’s who argued that the additional procedure places a substantial obstacle if not an absolute obstacle to the right of a woman receiving an abortion in the second trimester.

The petitioners pleaded the court to follow suit of the Supreme Court’s landmark decision nearly fifty years ago in Roe v. Wade, it has been clear that the Fourteenth Amendment guarantees a woman’s right to choose to undergo a pre-viability abortion.  The petitioner argued that while having an objective to respect the life of the unborn, the state cannot create obstacles in the path of a woman’s choice and health. 

Court’s decision 

The court observed after many hearings and witnesses being heard that the bill, Texas Senate Bill 8 and its additional clause does not have any existing health benefits for the women. Thus, it acts as an unnecessary obstacle in the path of a woman seeking a pre-viability abortion. The United States Court Of Appeal, Fifth Circuit held that the Texas Senate Bill 8 will be struck down as unconstitutional.

Click here to see full judgment.

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