The Austin Chronicle

Ultrasound Suit Loses Ground

By Jordan Smith, February 17, 2012, News

The 5th U.S. Circuit Court of Appeals has denied an appeal from the Center for Repro­ductive Rights, which asked that it reconsider a January decision overturning a preliminary injunction barring final implementation of the state's ultrasound-before-abortion law. Whether the CRR will ask the 5th Circuit to review a final decision made by district Judge Sam Sparks last week – which essentially dismissed the challenge to the law – remains to be seen.

Although effectively blocked from doing anything about it, Sparks wrote in a Feb. 6 opinion that he believes the 5th Circuit's blessing of the state's new ultrasound law as constitutional is simply wrong. But the appellate court – which intervened quickly to overturn Sparks' decision to stay imposition of certain portions of the new legislation while a larger challenge to its legality was pending – has essentially bound his hands, he wrote in last week's opinion granting the state the summary judgment it had sought and effectively closing this stage of the legal challenge.

The law, passed this spring after Gov. Rick Perry deemed it an "emergency" to do so, requires women seeking abortion to first undergo an ultrasound a day before the termination. It also requires that women view an image of the fetus and listen to the fetal heartbeat, and that doctors describe the fetal development. (There are narrow exceptions that allow women to forgo the fetal description, but only if they can prove they are victims of rape or incest, or that their fetus has been diagnosed with a gross abnormality.)

Seeking to invalidate the law, the CRR sued on behalf of a group of Texas doctors, arguing that it was impermissibly vague and that it violated doctors' free-speech rights. After a hearing last summer, Sparks agreed the law was problematic and granted a temporary injunction; in record time, the 5th Circuit overturned that injunction, essentially ruling that the law is constitutional. Indeed, a three-judge panel led by Chief Judge Edith Jones opined that the law is nothing more than an extension of the state's right to regulate medical practice by ensuring "informed consent" of any woman seeking an abortion.

Although the Jones opinion essentially foreclosed Sparks' ability to maintain the injunction or to rule further in favor of the plaintiffs, he remains skeptical about the law – and said so in classic Sparks style in his Feb. 6 ruling. Importantly, he noted that the Jones opinion conflated two provisions of the Constitution in an effort to cut short the argument that by mandating a certain medical procedure, the law violates Texas doctors' free-speech protections.

In the opinion, Jones relied on an earlier Supreme Court decision that found certain informed-consent laws did not place an undue burden on a woman seeking abortion. Here, though, the claim was in part that a doctor's First Amendment rights were being violated, not that a woman's protection under the 14th Amendment was being assaulted. "An early point of departure between this Court's analysis and the [5th Circuit] panel's is that this Court takes [the doctors'] claims at face value, and sees this as a case about doctors' freedom to enjoy their constitutional rights, and exercise their individual medical judgments, without unjustified state interference," Sparks wrote, "whereas the panel apparently sees it as a case about women's right to an abortion – an issue specifically disclaimed by [the doctors] in this suit." Not surprisingly, Sparks sounded a note of discomfort over the panel's framing of the issues brought in the case. "The concept that the government may make puppets out of doctors, provided it does not step on their patients' rights, is not one this Court believes is consistent with the Constitution, in the abortion context or otherwise," he wrote.

Moreover, a provision of the law that Sparks found too vague to be enforceable requires doctors to provide certain state-mandated information to a woman who, after the ultrasound, declines to have an abortion. The law does not explain how a doctor is to know that the woman chose not to abort. Jones, however, found this a "trivial matter" and suggested that if a woman failed to show for her appointment, the doctor should merely mail the information to her. Sparks found the 5th Circuit's dismissal of potential problems with this provision to "display an almost shocking lack of concern for the privacy and well-being of women considering abortions," he wrote. "It seems beyond question to this Court that some women might suffer great harm if such mailings were made indiscriminately," he continued. "For the panel to dismiss this vagueness concern as trivial, and to say the potential for harm to women is nonexistent, is profoundly disturbing. Requiring doctors to take actions they believe are likely to cause harm to their patients is completely at odds with the most basic tenets of medical ethics – and cannot, even under the most deferential interpretation of the phrase, be considered 'reasonable regulation of medical practice.'"

The CRR is still deciding whether to appeal this most recent Sparks ruling to the 5th Circuit, and whether to try to petition the Supreme Court for review, a decision that would have to be carefully weighed. Nonetheless, CRR president and CEO Nancy Northup says her organization will "continue to challenge similarly demeaning laws in North Carolina and Oklahoma." Indeed, the CRR has challenged similar laws in state court in Oklahoma and in federal court in North Carolina; in each case, the courts have barred enforcement of the law – and unlike Texas, no appellate court has moved to intervene in the pending cases.

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