NRL News

Three-Judge Panel Hears Challenge to Texas’s Sonogram Law

by | Jan 6, 2012

By Dave Andrusko

Texas Solicitor General Jonathan Mitchell

NEW ORLEANS — A three-judge panel from the 5th U.S. Circuit Court of Appeals heard arguments yesterday on a request by the state of Texas to lift a preliminary injunction issued against its new sonogram law by U.S. District Judge Sam Sparks. On August 30, two days before the law was to go into effect, Sparks ruled on that various provisions of the law violated the free-speech rights of abortionists. The panel did not immediately rule on Texas Solicitor General Jonathan Mitchell’s request.

House Bill 15 was passed and signed into law by pro-life Governor Rick Perry, who made passage a priority. The law “protects a pregnant woman’s right to view her unborn child and hear the heartbeat of that child before finalizing her decision to continue or terminate her pregnancy,” according to Texas Right to Life.

Elizabeth Graham, Director of Texas Right to Life, explained the background to HB 15.

Texas Right to Life and Senator Patrick worked alongside each other for five years on the Sonogram Bill to protect a woman’s right to informed consent before an abortion.  In his ruling, Judge Sparks accuses both the plaintiffs and defendants of waging an ideological war in his court room, yet he has done exactly that by enjoining the main points of the Sonogram Law.  The Sonogram Law is a common sense piece of legislation sponsored by Senator Patrick and Representative Sid Miller to ensure that women receive all the medical facts prior to making a life-changing decision to abort an unborn child.  To delay this law taking effect is to further jeopardize the health of women entering abortion clinics.”

Referring to the several provisions Sparks said violated the abortionists’ free-speech rights, Texas Solicitor General Jonathan Mitchell said, “Each of these decisions is wrong and should be vacated as an abuse of discretion.”

The law suit was brought by the New York-based Center for Reproductive Rights. CRR attorney Julie Rikelman said, “Our argument is that there is nothing in the record and everything to the contrary that this information is medically necessary,” according to the Associated Press (AP).

She cited Oklahoma and North Carolina where judges have temporarily blocked similar laws once CRR sued.  The AP’s Michael Kunzelman said Rikelman referred to the sonogram laws passed by other states as  “less intrusive,” laws “that make it optional for doctors to provide the information to patients.”

Mitchell countered that the law is a reasonable regulation furthering the state’s interest in fetal life that trumps any free-speech claims. “The statute is as clear as can be that patients may decline to view sonogram images and may decline to listen to the fetal heartbeat,” Mitchell said.

Rikelman was pressed by the judges to explain how law exceeds the state’s authority to regulate the medical profession, Kunzelman reported.  “How do you draw the line?” Judge Patrick Higginbotham asked.

“We would draw the line at what is medically necessary,” Rikelman responded. “The government shouldn’t be able to interject itself in our conversations with physicians in that way.”

The immediate backdrop to the hearing is that Judge Sparks has scheduled a January 20 hearing where he will hear requests by CRR to permanently bar Texas from enforcing those provisions of the law at issue and the state’s request to dismiss the suit. “Mitchell urged the 5th Circuit judges to rule before Sparks does, but the panel didn’t indicate how quickly they would issue a decision,” Kunzelman reported.

The story ended with comments from supporters of HB 15.

“A group of the law’s supporters traveled to New Orleans for Wednesday’s hearing. Nona Ellington, 43, of Houston, said she wasn’t given the choice of having a sonogram before she had an abortion in 1983 at age 15. Ellington said she was told her fetus was a ‘blob of tissue’ before she had the abortion, which she blames for five subsequent miscarriages.

“’I would not have had an abortion if I had seen a sonogram and heard the baby’s heartbeat,’ she said after the hearing.”

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Categories: Legislation