Abortion Sonogram Hearing: Novel Arguments from Plaintffs, So Judge Wants More Briefs

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Novel arguments from abortion-rights supporters, judge says.
Opponents trying to block the state's new so-called sonogram bill may have a tougher road in Texas than they've had in other states.

This morning's hearing in Austin, before U.S. District Judge Sam Sparks, did not produce an immediate temporary injunction, as opponents hoped. Instead, Sparks instructed both sides to bring back additional briefs in another 15 days.

Most challenges to informed consent laws involve the "undue burden" test, which says that requiring a doctor to perform and discuss a sonogram before an abortion, and possibly wait 24 hours before performing the procedure, is too onerous.

Abortion providers in this case, represented by the New York-based Center for Reproductive Rights, are arguing completely different points: that the guidelines set out in the Woman's Right to Know Act are confusing and vague; that it violates the doctor's free speech rights with its prescriptive nature; and that the procedure puts a reproductive rights burden on women that is not extended to men.

After spending a number of questions trying to pin down lead attorney Bebe Anderson on which specific clauses in the law were unconstitutional, and establishing that undue burden was not a cause of action, Sparks admitted he was a bit perplexed with the parameters of the case.

"I don't know what this lawsuit is all about," Sparks admitted. "I thought I knew, but after the statement of the plaintiffs, I'm not so sure."

The state's ace in the hole, as presented by Senator Dan Patrick on the Senate floor, is the severability clause in the bill, which would allow a judge to strip out any provision of the law that is deemed unconstitutional but allow the balance to remain. So, for instance, a court might decide that a sonogram could be performed, but the woman would not be forced to listen to a physician's explanation. Or a sonogram might be required but listening to the fetal heartbeat, as prescribed by the Act, would be optional.

The stakes for doctors are high in the law, a point not lost on Sparks. A doctor who fails to perform the procedure, as prescribed, has not gained "informed consent" and could be subject to both loss of a medical license and potential criminal penalties under the Act. The bill also sets out random inspections of abortion providers, either at a facility or in a doctor's office, to make sure doctors are compliant.

Assistant Attorney General Erika Kane, who argued the case on behalf of the state, said that the Texas Medical Board had broader latitude on pulling a medical license and would be able to consider the specific parameters of individual cases. She also rebutted Anderson's contention that the guidelines were too vague.

The Center for Reproductive Rights has pending litigation in both Oklahoma and Kansas, although it has called the Texas law the most restrictive in the country. In Oklahoma, all parties agreed to a temporary injunction before the case moved into litigation. In Kansas, litigation focuses on the licensing of abortion providers, rather than the informed consent of a woman seeking an abortion.

Sparks, who probably won't have another hearing prior to his ruling on a temporary injunction, said he expected to make a decision before the law goes into effect on October 1. The next level for appeal, of injunction or statute, would be the Fifth Circuit Court of Appeals in New Orleans.


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11 comments
Enough
Enough

Violated the doctor's free speech rights? Not extended to men?? Is that all they've got?? HA

Evan
Evan

It seems like every media outlet reporting on the matter insists on referring to the Center for Reproductive Rights as "New York based" in the first reference. Is this proper style? All it does is remind me of that wonderful exchange in the West Wing pilot:MARY MARSHYou people... that New York sense of humor, it always --CALDWELL Mary, there's absolutely noneed --MARY· MARSHPlease, Reverend, they think it's smart -- smart talk -- but nobody else does.JOSH I'm actually from Connecticut.TOBY Yeah, but she meant Jewish.

Wyatt
Wyatt

You make really excellent counterpoints. Just an elegantly constructed argument all around. Can't wait to hear more in-depth, even-handed analysis from you on the subject!

Katy
Katy

Hey, you know... The Right convinced me in the health care debate that government coming between a patient and their doctor is the worst of all possible sins. Now they're saying it's a GOOD thing?

It's so confusing to be a partisan...

Evan
Evan

First Amendment? Equal protection? HA

Kimberly Reeves
Kimberly Reeves

I have gone back and forth on that New York-based attribution. I actually did think about it as I typed it... And I do take your point. I think my bigger point was that ... just as the sonogram bills across the nation are a coordinated multi-state effort... opposition to those bills is a coordinated multi-state effort.

Enough
Enough

Douche has spoken!

Enough
Enough

YEAH! Why would someone about to terminate a human life want to hear that baby's heartbeat or see a sonogram? it could scar them for life!!

Enough
Enough

Pretty pathetic, huh?

Evan
Evan

Gotcha. Though I don't think that articles make it clear that the sonogram bills are part of a multi-state effort. Then again, I could just not being seeing it. I really am curious if it is proper first attribution, because it seems like every outlet is doing it like that. However the first group I saw refer to the CRR as "New York" was an anti-choice twitter feed, so maybe that provided a biased perspective. 

Kimberly Reeves
Kimberly Reeves

No, I agree with that. I'm going to make a better effort the next time around to talk about it in that context, on both sides. Suspect I'll have plenty of opportunities.

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