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Sparks to Lawmakers: Get Off Your Soapbox

Judge rejects lawmakers' attempts to join ultrasound lawsuit

By Jordan Smith, Fri., Aug. 19, 2011

U.S. District Judge Sam Sparks has denied two requests by state lawmakers to file as friends-of-the-court in a pending case that challenges the state's new ultrasound-before-abortion law.

In a tersely worded order, the no-nonsense federal judge on Aug. 9 denied a request by authors of the law – Sen. Dan Patrick, R-Houston, and Rep. Sid Miller, R-Stephenville – which requires a woman to undergo an ultrasound before terminating a pregnancy and also requires her, except in rare circumstances, to be subjected to a detailed description of fetal development. On Aug. 12, Sparks issued a second order, denying a similar request filed by members of the Legislature who supported the Miller/Patrick law. According to the lawmakers' brief, they are "constitutional officers who have taken an oath to uphold the Constitution of the United States in discharging their official duties, including enacting state legislation." As such, they "desire to participate" in the ongoing lawsuit in order to "explain how [House Bill] 15 responds to the evolving needs of Texas women facing an abortion decision," the brief states.

Requiring an ultrasound and description of fetal development, they wrote, is not "an ideological message." Still, they noted, the law does acknowledge "that abortion is an irrevocable procedure: it may have lasting, negative effects on the woman; and, yes, abortion does stop a beating heart." This is the same approach Miller and Patrick took in their attempt to influence the case: "An abortion performed without a medical professional's full disclosure to a pregnant woman of the impact on the fetus and the potential health consequences of an abortion could undermine the woman's trust in medical professionals," they argued.

Presumably, it was gratuitous language such as that which prompted Sparks' tersely worded denial of the request. The parties in the case – the Center for Reproductive Rights for the plaintiff doctors who are seeking to have the law enjoined, and the state in defense of the law – are "well represented," Sparks wrote, and not in need of help from either Patrick or Miller, "particularly when much of their 'assistance' is nothing more than thinly-veiled rhetoric."

"This is a federal lawsuit about the constitutionality of a statute, not a soapbox for politicians or a sounding board for public opinion," he continued. "The Court is confident counsel in this case can protect their clients' interests all by themselves."

Sparks has yet to rule on a request to enjoin the law while the larger suit seeking to have it outlawed proceeds. The CRR says that if the law is allowed to go into effect, it would threaten the constitutional rights of doctors and of all Texas women. Among its problems, the CRR argues, the law is vague, violates the First Amendment by mandating speech for doctors and making a captive audience of women, and violates the equal protection rights of women – simply put, men seeking reproductive health services are not subjected to any government intrusion into private medical decisions.

The state and lawmakers have said this bill is about ensuring that women have access to as much information as possible before terminating a pregnancy. They also claim the "severability clause" embedded in the law should apply to keep most of it on the books even if portions of it are ruled unconstitutional – a point the lawmakers' brief sought to hammer home. There is no doubt that Sparks doesn't require their help to understand that principle. A ruling is expected soon.

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