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A Further Look at Judge Sparks’ Comments about Texas’ Sonogram Law

Feb 10, 2012

By Dave Andrusko

Federal Judge Sam Sparks

First, thank you to those who’ve responded to our lengthy series of stories about the Texas sonogram law. H.B. 15 is now fully operational after the U.S. District judge who temporarily enjoined the law gritted his teeth and conceded that in light of a decision upholding the law by a federal appeals court panel, he had no choice but to get out of the way.

You may recall that two days before the law was set to take effect, Judge Sam Sparks blocked four of H.B. 15’s provisions on the grounds that they violated the abortionists’ free speech rights under the First Amendment. For good measure Sparks blocked three additional provisions that he deemed unconstitutionally “vague.” Texas appealed immediately and eventually a three-judge panel of the 5th U.S. Circuit Court of Appeals boxed Sparks’ ears.

Part of Chief Judge Edith Jones’ 24-page ruling explaining why the state of Texas was perfectly within its rights to amend the Texas Woman’s Right to Know Act focused on Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court’s 1992 decision that was reaffirmed in 2007 in Gonzales v. Carhart.

When I wrote the latest story about a grumbling Judge Sparks, I mentioned in passing that according to the Houston Chronicle, “Sparks spent 30 years defending doctors and hospitals while practicing law in El Paso before being appointed to the federal court.” (www.nationalrighttolifenews.org/news/2012/02/judge-reluctantly-concedes-he-cannot-prevent-texas-sonogram-law-from-taking-effect).

Supreme Court Justice Harry Blackmun

Somehow the parallel to Justice Harry Blackmun, author of Roe v. Wade, just slipped by me. While it can be exaggerated, it is clearly true that Blackmun, who’d served as resident counsel for the Mayo Clinic, focused on the “right” of physicians [abortionists] to practice without oversight by the courts. Or as one reviewer wrote (in reviewing a particularly reverential book about Blackmun), “Blackmun focused more on doctors’ right to perform abortions without fear of prosecution than women’s right to have them.”

That may have been true in 1973, but Blackmun made up for lost time in the years to come. When he retired in 1994, Blackmun would say, “I think [Roe] was right in 1973, and I think it was right today. I think it’s a step that had to be taken as we go down the road toward the full emancipation of women.” In between his attacks on Roe doubters ranged from petty and vindictive to outlandish and hysterical.

To return to Judge Sparks and his opinion acknowledging the inevitable… As one particularly thoughtful story concluded, “Sparks’ latest order emphasizes that the claims in this action concern the effects the bill will have on physicians, rather than on women seeking abortions.”

Unlike the appeals court panel, Sparks insists he does “take plaintiffs’ claims at face value.” By that he means (as he says in a footnote) that this is “a case about doctors’ freedom to enjoy their constitutional rights, and exercise their individual medical judgments, without unjustified state interference; whereas the panel apparently sees it as a case about women’s right to an abortion–an issue specifically disclaimed by plaintiffs in this suit.”

I don’t know the man or his background, beyond “30 years [of] defending doctors and hospitals.” But it’s worth noting that by framing the debate as abortionists’ ability to “exercise their individual medical judgments, without unjustified state interference,” Sparks may be trying to set the stage for a higher court (or the full 5th circuit) to gut the law on the loftier grounds that the panel misunderstood what the Supreme Court allowed in the way of state regulation in Casey.

Stay tuned.

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Categories: Legislation