January 11, 2012 — On Tuesday, a three-judge panel from a federal appeals court lifted a lower court's injunction against a Texas law requiring doctors to perform an ultrasound, provide the woman with the option to hear the fetal heartbeat and describe the fetus before providing abortion care, the AP/Washington Times reports. The ruling allows the state to begin enforcing the law, although it was not immediately clear when it would begin doing so (Tomlinson, AP/Washington Times, 1/10).
In August 2011, U.S. District Court Judge Sam Sparks stopped three main provisions of the law from taking effect, including requiring doctors to make an ultrasound available for viewing by the woman; describing what the ultrasound shows, including the size of the fetus and any internal organs; and making available audio of the fetus' heartbeat, if detectable.
Sparks ruled that the provisions violate the First Amendment by requiring doctors to engage in government-mandated speech. He let stand a provision in the law requiring ultrasounds at least 24 hours before an abortion procedure, unless the woman lives at least 100 miles from the nearest provider. In that case, the wait time would be two hours (Women's Health Policy Report, 1/6).
The three-judge panel of the 5th U.S. Circuit Court of Appeals concluded that the law requires physicians to provide "truthful, non-misleading information," which the judges said does not violate the right to free speech (Koppel, Wall Street Journal, 1/11). The panel sent the case back to Sparks with instructions to proceed under its guidelines (Scharrer, San Antonio Express-News, 1/11).
Chief Judge Edith Jones wrote, "The required disclosures of a sonogram, the fetal heartbeat and their medical descriptions are the epitome of truthful, non-misleading information." Jones added, "The point of informed consent laws is to allow the patient to evaluate her condition and render her best decision under difficult circumstances." She continued, "Denying her up-to-date medical information is more of an abuse to her ability to decide than providing the information" (AP/Washington Times, 1/10).
The judges also said that seeking abortion care is a "difficult and painful moral decision," adding, "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude that some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow" (San Antonio Express-News, 1/11).
The Center for Reproductive Rights, which brought the case, has 14 days to request a rehearing (AP/Washington Times, 1/10). Although CRR has not decided whether to ask the full 5th Circuit to hear the case, the group will continue to pursue a challenge in Sparks' court on other grounds, including the argument that the law amounts to sex discrimination against women (Wall Street Journal, 1/11).
Nancy Northrup, president of CRR, said, "This law, and this decision, inserts government directly into a private decision that must be protected from the intrusion of political ideologues" (AP/Washington Times, 1/10). Julie Rikelman, a senior staff attorney for CRR, said evidence contradicts the panel's remarks about mental health effects of abortion. She cited a recent American Psychological Association study that found no evidence of an association between abortion and psychological harm (San Antonio Express-News, 1/11).
Cecile Richards, president of the Planned Parenthood Federation of America, said the ruling "sets an abhorrent precedent" at a time when several other states are considering measures to restrict access to abortion and contraception (Wall Street Journal, 1/11).
Supporters of the bill praised the court's decision. Gov. Rick Perry (R) called the ruling a "victory" and said the legislation "ensures that every Texas woman seeking an abortion has all the facts about the life she is carrying and understands the devastating impact of such a life-ending decision" (AP/Washington Times, 1/10).
Repro Health Watch — an exciting new edition of the Women’s Health Policy Report — compiles and distributes media coverage of proposed and enacted state laws and ballot initiatives affecting women's access to comprehensive reproductive health care, as well as litigation in response to those provisions.