Texas sonogram law can go forward, federal appeals court says

From Dallas Morning News (Austin Bureau), By Christy Hoppe and Sommer Ingram, 10 January 2012 –

AUSTIN — Texas’ law requiring women seeking abortions to undergo a sonogram and be presented the image and a fetal heartbeat doesn’t violate constitutional protections and can take effect soon, a federal appeals court ruled Tuesday.

The three-judge panel of the 5th U.S. Circuit Court of Appeals lifted a ban on the law that had been imposed in August by U.S. District Judge Sam Sparks. Other issues and a formal ruling on the case are still pending before Sparks.

But in the interim, state officials can set a start date to begin enforcing the law, which will be announced by the Texas State Department of Health Services in conjunction with state lawyers.

“Today’s ruling is a victory for all who stand in defense of life,” said Gov. Rick Perry, who pushed for the measure and signed it into law last spring.

The law had been challenged by doctors, who argued that it overrode their medical opinions, interfered with their patient relationships, and made them “a mouthpiece” of the state by requiring certain tests and instructing how those tests should be presented to their patients. If doctors do not follow the law, they can lose their medical license.

Nancy Northup, president of the Center for Reproductive Rights, a New York-based nonprofit group that challenged the law, said judges have struck down similar laws in other states, and the 5th Circuit panel is the only one to uphold such an invasive law.

“One of the most extreme mandatory ultrasound laws in the nation … has now led to an extreme court decision on this issue,” Northup said. “This clears the way for the enforcement of an insulting and intrusive law whose sole purpose is to harass women and dissuade them from exercising their constitutionally protected reproductive rights.”

The court panel found that the sonogram law mandates that physicians impart information, not state ideology, and that compelling doctors to make factual statements to a patient is permitted under informed consent laws.

Such laws allow for “relevant disclosures,” and the state’s regulations “do not fall under the rubric of compelling ideological speech,” the appellate court wrote.

“The required disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information,” the three judges wrote.

The court said mandating that doctors impart such information is relevant for the “physical and psychological risks to the expectant mother” and to the state’s interest in protecting potential life.

The justices based much of their opinion on the 1992 Supreme Court ruling in a case called Planned Parenthood vs. Casey, which allowed the state to require that certain factual, informative materials be provided to abortion patients. The 5th Circuit opinion, written by Chief Justice Edith Jones, found that ordering certain tests and mandating that doctors describe those to their patients is a legal extension of that ruling.

All three appellate judges who signed the opinion were appointed by Republican President Ronald Reagan. Sparks was appointed by Republican George H.W. Bush.

In a concurring opinion, Circuit Judge Patrick Higginbotham wrote that two principles are at play: acknowledging that the “state need not remain neutral” and can try to “persuade citizens to exercise their constitutional right to choose a state-preferred course.”

“Second, the state cannot compel a citizen to voice the state’s views as his own,” he wrote.

He said Texas’ law gives due consideration to both principles, but he warned that federal law “opens no unfettered pathway for states to suppress abortions through the medium of informed consent.”

Attorney General Greg Abbott, whose office defended the law, said the “decision recognizes that the Texas sonogram law falls well within the state’s authority to regulate abortions and require informed consent.”

Joe Pojman, executive director of Texas Alliance for Life, praised the ruling, arguing that the law protects women.

“This is about raising the standard of care regarding informed consent about abortions to the same level any patient would expect from any other medical or surgical procedure,” he said.

Northup said abortion rights groups will continue to challenge the law.

“This law, and this decision, inserts government directly into a private decision that must be protected from the intrusion of political ideologues,” she said.

Under the law, in addition to receiving written materials about the risks of abortion, women must undergo a sonogram. The vast majority for women in their first trimester of pregnancy will be done by vaginal probe. External ultrasounds done over the abdomen are not useful for a clear fetal image early in a pregnancy.

The women must sign a waiver if they do not want to see the image or hear a heartbeat, if one is present. But virtually all women must listen to a detailed description of the physical characteristics of the fetus revealed through the sonogram.

Then women must wait at least 24 hours and return to the doctor’s office if they still want to have the procedure.

The state health department will provide information to doctors and the public in the near future about when provisions of the law will be enforced, spokeswoman Carrie Williams said.



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