Appellate Ruling Upholds Texas Abortion Law

(by Nathan Koppel, The Wall Street Journal, WSJ.com) – The Fifth U.S. Circuit Court of Appeals on Tuesday upheld a Texas law that requires women seeking an abortion to have a sonogram exam and to listen to a physician’s detailed description of the [unborn baby], including whether it has developed limbs or internal organs.

Supporters of the law, enacted last year, say it is designed to ensure that women are fully informed about abortions and, ultimately, to discourage them from undergoing the procedure. It requires all women seeking abortions to have a sonogram, also known as an ultrasound scan, but it allows some women–such as those who certify they are rape victims–to avoid hearing a description of the fetus or embryo.

In a constitutional challenge to the law, U.S. District judge Sam Sparks of Austin ruled in August that it violates physicians’ free-speech rights by compelling them to “advance an ideological agenda with which they may not agree, regardless of any medical necessity, and irrespective of whether the pregnant women wish to listen.”

A three-judge panel of the Fifth Circuit reversed Judge Sparks, concluding that the law merely requires physicians to provide “truthful, non-misleading information” and therefore doesn’t violate their free-speech rights. The Fifth Circuit ruling clears the way for Texas to enforce the sonogram law, Texas Attorney General Greg Abbott said in a statement.

“The Texas sonogram law falls well within the State’s authority to regulate abortions and require informed consent from patients before they undergo an abortion procedure,” Mr. Abbott said.  [Informed consent is a concept in the medical community which supports the idea that patients should be fully informed at all stages of medical treatment. There are two aspects to informed consent: a conversation with a care provider or researcher, and a form which must be signed to indicate that the conversation has occurred.]

Earlier rulings have found that laws requiring doctors to give “truthful, non-misleading and relevant” information are reasonable regulations, not ideological speech requiring strict scrutiny under the First Amendment, the appeals court said.

“‘Relevant’ informed consent may entail not only the physical and psychological risks to the expectant mother facing this ‘difficult moral decision,’ but also the state’s legitimate interests in ‘protecting the potential life within her,'” Judge Edith H. Jones wrote [in her opinion].

Judge Jones wrote that the argument against requiring the doctor to perform the sonogram only made sense if a “pregnancy is a condition to be terminated.”

“The point of informed consent laws is to allow the patient to evaluate her condition and render her best decision under difficult circumstances,” Judge Jones wrote. “Denying her up-to-date medical information is more of an abuse to her ability to decide than providing the information.” …

In his temporary order, Judge Sparks also agreed with the doctors appealing the law that the doctor should not be compelled to show the woman the sonogram image, to play the sound of the fetal heartbeat and to explain the sonogram image verbally if the women does not want to look or listen.

Judge Jones found that there was no constitutional argument against these elements of the law.

“The woman seeking an abortion may elect not to receive these images, sounds, or explanations,” Judge Jones wrote. “This election does not obviate the physician’s obligations to display the sonogram images or make audible the heart auscultation; the woman may simply choose not to look or listen.”

Judge Jones wrote that the doctors had failed to make a convincing argument against the law, and she made clear that she expects Judge Sparks to use her ruling when making any further decisions in the case. Judge Jones also said the 5th Circuit would hear any further appeals in this case. (the 9 paragraphs above are from washingtontimes.com)]

The decision was the first by a federal appellate court upholding the constitutionality of a state law mandating a physician’s description of an ultrasound, said Nancy Northup, president of the Center for Reproductive Rights, a New York nonprofit that represents the physicians challenging the Texas law.

North Carolina and Oklahoma have similar laws…but courts there have blocked the laws on free-speech grounds. …

While the Center hasn’t decided whether to ask the full Fifth Circuit to reconsider the ruling, Ms. Northup said her clients will continue to challenge the sonogram law in Judge Sparks’ court on other grounds, including a claim that it amounts to sex discrimination against women.

Cecile Richards, president of Planned Parenthood Federation of America, said in a statement that the Fifth Circuit ruling “sets an abhorrent precedent” as many states are set to consider bills or ballot measures that would restrict birth control and abortions.

“This is a great day for life in Texas,” countered Republican state Sen. Dan Patrick, who represents part of Houston and who sponsored the legislation. “This law is about a woman’s right to know so she can have all the information she deserves before making a decision to end a life.”

Write to Nathan Koppel at nathan.koppel@wsj.com.

Copyright 2012 Dow Jones & Company, Inc. All Rights Reserved. Reprinted here for educational purposes only. Visit the website at wsj.com.