Sparks Grills Lawyers in Ultrasound Case
Court to rule on injunction before new law takes effect
A crew of the usual suspects – including representatives of Texas Alliance for Life, Texas Right to Life, and the Liberty Institute – joined lawyers and reporters for a hearing July 6 in U.S. District Judge Sam Sparks' courtroom to hear a lawyer for a group of Texas doctors argue that the state should be restrained from implementing the new ultrasound-before-abortion law while a suit challenging its constitutionality is pending.
Bebe Anderson, senior counsel for the Center for Reproductive Rights, which is representing the doctors, argued that if the law were to take effect this fall (it is effective Sept. 1, but will be enforced beginning Oct. 1), it would pose a threat of irreparable harm to both Texas doctors and women seeking safe and legal abortion care. Put bluntly, she told Sparks, the law "threatens" the constitutional rights of doctors and of all Texas women.
Among Gov. Rick Perry's "emergency" items for this year's legislative session was the ultrasound bill, which had failed to pass in sessions previous. The resulting law (passed in mid-May) requires women seeking abortion to first undergo an ultrasound 24 hours before termination and be given the option to view an image of the fetus and to hear the fetal heartbeat. The law also requires women to hear a description of fetal development – although a woman who avers that she is a victim of rape or incest (and has reported that to police) or whose fetus suffers from a gross abnormality (and can prove a doctor has diagnosed as such) may opt out of hearing that description. According to the state, the law is merely about ensuring informed consent to abortion, adding another layer to information already provided to women prior to terminating a pregnancy, including information about risks associated with abortion (and about fetal development, making the new law redundant in this area) that the state mandated with the passage in 2003 of the Woman's Right To Know Act.
But the new law is flawed, Anderson argued in court. It is vague, making it difficult for medical providers to understand exactly what is required to comply with its provisions, and a failure to comply can result in the loss of a doctor's medical license or even a criminal penalty. For example, the law requires a doctor to make the fetal heartbeat audible "in a quality consistent with current medical practice," but there is actually no medical practice that defines how that should be done. "That really is standardless," said Anderson. "There is no guidance about what that means." The law also violates the First Amendment's free speech provision by compelling doctors to deliver a government script and forcing a captive audience of women to be subjected to that speech – and because of the vagueness, doctors will likely have to deliver the speech, display the images, and play the heartbeat to women who would prefer to opt out, a situation that would violate clearly the most basic medical ethics, she argued. The law also violates the equal protection rights of women, reads the lawsuit, in part because it discriminates based on sex – simply put, men seeking reproductive health services are not subjected to government intrusion in their private medical decisions, and the law suggests that a woman's "primary and proper role is that of mother." For the purposes of the injunction hearing, Anderson focused on the vagueness and the free speech issues as compelling and urgent reasons to enjoin the law.
But Erika Kane, appearing for the state on behalf of the law, argued that the state does have the authority to mandate speech that is necessary to ensure informed consent, which is a compelling interest for the state.
And since the plaintiff doctors have not raised a so-called "undue burden" claim, they cannot demonstrate that they're likely to win their larger lawsuit, which means they should not be granted an injunction. Indeed, Sparks peppered Anderson with several questions about the decision not to claim that the law placed an undue burden on women seeking abortion – which has been the basis on which courts have invalidated some laws seeking to more strictly regulate access to abortion. Sparks told Anderson that although he thought he understood the lawsuit prior to the July 6 hearing, absent an undue burden argument, "I'm not sure what I think." But Anderson told the Chronicle that the Center for Reproductive Rights does not raise an undue burden claim in every lawsuit it brings, and in this case, she said, the constitutional violations permitted by the Texas law are grave and pressing. "Most abortion cases are related to this right to privacy" and undue burden placed on that right, she said, and in deciding these cases, the courts have not moved past those problems in order to reach additional arguments over equal protection and other constitutional claims. In this case, however, the CRR and plaintiff doctors believe that it is particularly appropriate to proceed on alternate grounds because there are "such serious constitutional problems."
Indeed, although Sparks appeared to question that approach, he was also clearly concerned about the vagueness of numerous sections in the law. For example, he asked Kane, what does "the phrase 'understandable to a layperson' mean" in the context of how the doctor is supposed to explain the fetal image, development, and heartbeat? That, Kane responded, is a "self-evident phrase."
"And if [a doctor] violates that [section]" and can lose his or her license for it, "you just say, 'Well, everybody knows that'?" Sparks replied. "Let's try another one." How about the phrase "current medical practice" – the language that Anderson had earlier raised as confusing – "what does that mean?" he asked.
"There's no separate definition" for that within the law, Kane answered, and the state is "not prescribing" a certain way that it should be done.
But isn't that exactly what it says in the statute, Sparks asked. Put another way, he asked Kane, if making the heartbeat audible is not something provided for in current medical practice, does that mean the doctor doesn't have to comply with that portion of the statute?
"No," Kane replied.
"I didn't think so," said Sparks.
When Kane said that she would have to get answers to some of Sparks' questions about what certain terms in the statute meant and would add those to a supplement filed later with the court, Sparks responded with a measure of incredulity: "How many supplements is it going to take for me to understand the statute – and are you going to send [that] out to all of the doctors" affected by the statute?
In the end, said Kane, the law is really about providing a woman with as much information as possible to ensure she is making an informed choice about terminating her pregnancy. "It's a matter of education then ... that's the state's position," responded Sparks. "But isn't it real obvious what the real purpose of this [statute] is?"
Sparks has given the lawyers 15 days to file supplemental briefs with the court and said he will enter a ruling on the injunction before the law is scheduled to take effect this fall.
Jordan Smith, Fri., Aug. 19, 2011
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