Although many folks had suspected that Gov. Rick Perry would find a spectacle as backdrop for signing the new ultrasound-before-abortion bill – perhaps on a Sunday after church? – he instead chose a more sedate route, signing the measure into law on Thursday, May 19. It would take effect Sept. 1, but a legal challenge to delay the law appears likely.
The measure, which would require women seeking abortion to undergo an ultrasound procedure at least 24 hours prior to a termination and, except in certain limited circumstances, listen to a description of fetal development, goes into effect Sept. 1, giving abortion providers not much time for preparing to implement the law. The stakes are high: Failure to comply with the bill’s various provisions can cost the doctor involved her license – a troubling situation given the fact that many providers say the bill’s language is tragically vague. For example, a woman has an opportunity to avoid two features of the law – viewing the ultrasound image and listening to the fetal heartbeat – but gives no guidance on when a woman should be informed of her ability to opt out. And, while she is lying prone with feet in stirrups, what will it take to ensure she isn’t a captive audience for that image and sound? Moreover, the bill provides an exemption to the 24-hour rule for women who live more than 100 miles from an abortion provider, but whose responsibility is it to check that the 100-mile rule is met? Does the clinic have to vet the client’s address and then check to see what providers are close by? Or does the patient bear responsibility for providing documentation? Additionally, only women who are victims of rape or incest – as reported to police (or not, if reporting the assault would put the woman’s life in danger) – or have a fetus with an irreversible abnormality, may opt out of hearing the fetal description, but only after certifying that one of the exemption conditions exist. But what if the woman lies? Does she get in trouble or does that also implicate the doctor? And if that is the case, how does a clinic or doctor verify the truth of the affidavit? In short, the bill raises many questions and provides few answers.
And there also remains a question of whether someone will sue to keep the law from taking effect – namely the Center for Reproductive Rights, which has sued to keep a similar law in Oklahoma from taking effect. The CRR last year filed a legal challenge to the Oklahoma law and a judge in July 2010 blocked enforcement of the new law until the legal challenge could be settled. The suit challenges the law, similar to Texas’, for its violation of privacy rights, for forcing a woman to hear information that may not be relevant to her medical care, and for interfering with the doctor-patient relationship – potentially degrading it by compelling the doctor to deliver “unwanted speech,” among other claims, according to CRR. That suit is still pending. Bebe Anderson, senior counsel for the CRR, says that the Center has been monitoring closely Texas’ ultrasound legislation and is preparing to challenge the law in court. “It is an extreme intrusion and patronizing to women,” she said. Anderson said it would be too soon to discuss the possible grounds for the suit, but said that the problems with the Texas bill are similar to those in Oklahoma. “Certainly the law has some of the same serious flaws that Oklahoma’s has,” she says. “It is very important that this law not go into effect.” For starters, the law represents a serious attack on the doctor-patient relationship and represents a troubling view of women as incapable of making serious medical decisions. “It is particularly extreme and offensive,” she said.
Anderson would not say when the suit might be filed, but said the Center is “certainly well aware of the effective date” attached to the law.
This article appears in May 20 • 2011.