Appellate Ruling Upholds Texas Abortion Law

Daily News Article — Posted on January 12, 2012

(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.]

[The [Fifth Circuit] appeals court cited a 1992 U.S. Supreme Court ruling that “upheld an informed-consent statute over precisely the same ‘compelled speech’ challenges made” in the current Texas case.

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.

Background

THE U.S. COURT SYSTEM: There are two separate court systems in America. The federal court system deals with issues of law relating to those powers expressly or implicitly granted to it by the U.S. Constitution, while the state court systems deal with issues of law relating to those matters that the U.S. Constitution did not give to the federal government or explicitly deny to the states. (from uscourts.gov)

from BensGuide.gpo.gov:

Most cases do not start in the Supreme Court. Usually cases are first brought in front of lower (state or federal) courts. Each disputing party is made up of a petitioner and a respondent.
Once the lower court makes a decisions, if the losing party does not think that justice was served, s/he may appeal the case, or bring it to a higher court. In the state court system, these higher courts are called appellate courts. In the federal court system, the lower courts are called United States District Courts and the higher courts are called United States Courts of Appeals.
If the higher court's ruling disagrees with the lower court's ruling, the original decision is overturned. If the higher court's ruling agrees with the lower court's decision, then the losing party may ask that the case be taken to the Supreme Court. But ... only cases involving federal or Constitutional law are brought to the highest court in the land [the Supreme Court].

THE FEDERAL COURT SYSTEM:
(from usgovinfo.about.com/od/uscourtsystem/a/fedcourts.htm)

The Supreme Court
Created in Article III of the Constitution, the Chief Justice and eight associate justices of the Supreme Court hear and decide cases involving important questions about the interpretation and fair application of the Constitution and federal law. Cases typically come to the Supreme Court as appeals to decisions of lower federal and state courts.

The Courts of Appeals
Each of the 12 regional circuits has one U.S. court of Appeals that hears appeals to decisions of the district courts located within its circuit and appeals to decisions of federal regulatory agencies. The Court of Appeals for the Federal Circuit has nationwide jurisdiction and hears specialized cases like patent and international trade cases.
For a Circuit Court of Appeals map, go to uscourts.gov/court_locator.aspx.

The District Courts
Considered the trial courts of the federal judicial system, the 94 district courts, located within the 12 regional circuits, hear practically all cases involving federal civil and criminal laws. Decisions of the district courts are typically appealed to the district's court of appeals.

The Bankruptcy Courts
The federal courts have jurisdiction over all bankruptcy cases. Bankruptcy cannot be filed in state courts. The primary purposes of the law of bankruptcy are: (1) to give an honest debtor a "fresh start" in life by relieving the debtor of most debts, and (2) to repay creditors in an orderly manner to the extent that the debtor has property available for payment.

Special Courts
Two special courts have nationwide jurisdiction over special types of cases:

U.S. Court of International Trade - hears cases involving U.S. trade with foreign countries and customs issues
U.S. Court of Federal Claims - considers claims for monetary damages made against the U.S. government, federal contract disputes and disputed "takings" or claiming of land by the federal government

Other special courts include:

Court of Appeals for Veterans' Claims
U.S. Court of Appeals for the Armed Forces