The Austin Chronicle

Dan Patrick Denied

By Jordan Smith, August 11, 2011, 3:14pm, Newsdesk

Federal 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 the authors of the bill – Sen. Dan Patrick, R-Houston, and Rep. Sid Miller, R-Stephenville – which requires a woman undergo an ultrasound before terminating a pregnancy and requires her, except in rare circumstances, also 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 H.B. 15 responds to the evolving needs of Texas women facing an abortion decision," they wrote.

Requiring an ultrasound and description of fetal development, they wrote, is not "an ideological message." Still, the lawmakers noted, that 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 taken by Miller and Patrick 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 argue.Presumably, it was gratuitous language such as that, which prompted Sparks' tersely-worded denial of the Miller and Patrick 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 in his Aug. 9 ruling, and not in need of help from either Patrick or Miller, "particularly when much of their 'assistance' is nothing more than thinly-veiled rhetoric," Sparks wrote. "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 echoed these sentiments in denying the second request as well: "[C]ounsel for the parties in this case are more than capable of advocating for their clients' positions without outside input," he wrote.

With that, Sparks dismissed their interloping. This means Sparks has now three times fended off such grandstanding intervention. During a hearing on the case in July, Allan Parker, president of the Justice Foundation – which, among other things, would like to see abortion outlawed – approached the bench to say that his group would like to intervene in the case. When Parker tried to make a speech on the issue – saying, in part, that "most women" who seek abortion never see a doctor until "her legs are in the stirrups" – Sparks cut things short: "I don't see the jurors" here today, he said. If Parker wanted to intervene, he said, he should file a motion.

Sparks has yet to rule on whether the grant 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 argues that it has the ability to mandate some speech, necessary to ensure informed consent – which is what lawmakers (including Gov. Rick Perry, who made passage of the bill a priority) have said this bill is all about: Ensuring that women have access to as much information as possible before terminating a pregnancy. The state also argues that the so-called "severability clause" embedded in the law should apply in order to keep most of the law on the books in the event that portions of it are ruled unconstitutional – a point that 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.

You can find more about the CRR's lawsuit and the ultrasound law, here.

*This was updated Aug. 15 to include the Aug. 12 ruling and to make it clear that Sparks has now addressed two separate requests to intervene – first from Miller and Patrick and then from their Capitol colleagues. The revision also includes links to the Patrick and Miller brief and to Sparks' most recent ruling.

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