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Court of Appeals Lifts Temporary Injunction Against Texas Sonogram Law

by | Jan 11, 2012

By Dave Andrusko

Judge Edith Jones

In a huge victory for pro-lifer forces, a three-judge panel of the 5th U.S. Circuit Court of Appeals this morning lifted a temporary injunction against Texas’ sonogram law.

“This ruling marks the turning point in this long court battle over the strongest and most effective sonogram law in the nation, empowering pregnant women with, accurate informed consent information before finalizing any decision about their pregnancy, “ said Texas Right to Life Legislative Director John Seago. “This law will protect pregnant women from the routine deception practiced at abortion clinics, and women deserve the truth about the life in their womb.“

Chief Judge Edith H. Jones’s 24-page opinion systematically dismantled the arguments offered by U.S. District Judge Sam Sparks to justify his August 30 decision temporarily enjoining H.B. 15. Noteworthy is that “for the sake of judicial efficiency,” the panel will hear any further appeal. That means that whenever Sparks hears the case the resulting decision will be reviewed by the same three judges who concluded that the Center for Reproductive Rights “had failed to establish a substantial likelihood of success on any the claims on which the injunction was granted.”

H.B. 15, signed into law by pro-life Gov. Rick Perry, is intended to “strengthen the informed consent of women who chose to undergo abortions,” Jones wrote. The abortionist is required to perform and display a sonogram of the unborn child, make audible the baby’s heartbeat for the mother to hear, and explain to her the results of each procedure.

A very excited National Right to Life Director of State Legislation Mary Spaulding Balch said, “We couldn’t have gotten a better decision.”  Reading from the opinion, Balch told NRL News Today that the language of the statute

“expressly reserve[es] to the pregnant woman the right to refuse the physician’s verbal explanation, sonogram images, or heart ausculation… the woman may simply choose not to look or listen.”

The panel “understands it brilliantly,” Balch explained, noting that Judge Jones had underlined the word “display.”

“The responsibility is on the abortionist to display the image on screen, leaving it up to the mother to decide whether or not to watch,” Balch said.    

Potentially, there is additional significance to the panel’s decision. Oklahoma and North Carolina have comparable ultrasound laws, both of which have been enjoined. Oklahoma’s law is pending in a state court, Balch said, North Carolina in a federal district court.

There was much talk by opponents of the law about it so-called “ideological” speech. Jones concluded the law’s language was just the opposite. 2

To belabor the obvious and conceded point, the required disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information. … The appellees failed to demonstrate constitutional flaws” with the law.

Sparks had accepted virtually without exception the Center for Reproductive Right’s argument that law “abridges” the First Amendment free speech rights of abortionists by “compelling speech.” Jones noted that the same kind of arguments were offered up (and rejected) by the Eighth Circuit following the 1992 Planned Parenthood of Southeast Pennsylvania  v. Casey decision.

Referring to Casey specifically, Jones noted that the plurality opinion concluded that “’the giving of truthful, nonmisleading information’ which is ‘relevant…to the decision’ did not impose an undue burden on the woman’s right to an abortion.’”

Jones added, “’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.’”

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Categories: Legislation