Fifth Circuit Approves Mandatory Ultrasound

The war on women continues (Illustration by Jason Stout)

Concluding that the motive behind and language of Texas' new ultrasound-before-abortion bill is only to ensure the informed consent of women seeking abortion, a three-judge panel of the 5th U.S. Circuit Court of Appeals ruled Jan. 10 that the law may be enforced.

The decision, authored by Chief Judge Edith Jones, overturns an injunction granted by district Judge Sam Sparks last year. Sparks ruled that portions of the law violated the First Amendment – compelling doctors to deliver (and patients to endure) government-crafted ideological speech – and that other portions of the law are too vague to enforce.

At issue are provisions of the ultrasound bill that was among Gov. Rick Perry's "emergency" items for the 2011 Legislature, which had failed to pass in previous sessions. Specifically, the new law, passed in May, requires women seeking abortion to first undergo an ultrasound 24 hours before termination; the law also requires doctors to display the sonogram image to the woman, to make audible (when possible) the fetal heartbeat, and to provide a verbal description of the fetal development. The doctor is required to comply with each provision regardless of medical necessity or whether the woman wishes to view the fetal images or hear the heartbeat or description; a doctor who fails to comply with the provisions of the law stands to lose her medical license. A woman may "opt" not to view the image or to hear the heartbeat, but is allowed only to forgo listening to the fetal description if she avers that she is pregnant as a result of rape or incest – and has reported it to law enforcement (or hasn't reported it because she's afraid that would put her life at risk) – or if she can prove that her unborn child suffers a gross fetal abnormality.

District Judge Sam Sparks on Aug. 30, 2011 agreed with the Center for Reproductive Rights that portions of the law offended the First Amendment and others were vague, and he issued a temporary injunction that barred the entire law from taking effect last fall while the larger question of whether the law would survive legal challenge was pending. The CRR has been successful in enjoining similar laws, and on similar grounds, in a state court proceeding in Oklahoma and in a federal challenge in North Carolina; those lawsuits are pending.

Nonetheless, the Fifth Circuit, led by Jones, ruled that Texas' law does nothing to offend the First Amendment. Rather, the court said, the law merely reinforces the provisions of informed consent that are already a part of Texas law – including a requirement that doctors make available to women seeking abortion the Women's Right to Know pamphlet, which contains information on fetal development (as well as dubious information about health affects of abortion, including the discredited notion that abortion increases the risk of breast cancer). That the state has the right to regulate medical practice is clear, Jones wrote, as is the idea that the state has a right to encourage a woman to choose to carry a pregnancy to term instead of to choose abortion. "Turning to the [CRR's] specific objections, the provision of sonograms and the fetal heartbeat are routine measures in pregnancy medicine today. They are viewed as 'medically necessary' for the mother and fetus," she wrote. "Only if one assumes … that pregnancy is a condition to be terminated, can one assume that such information about the fetus is medically irrelevant." Denying "up to date medical information is more of an abuse to [a woman's] ability" to make an informed choice, she continued. The Texas ultrasound law's "method" of delivering this information is "direct and powerful" but is only an extension of informed consent laws already in place that have been found constitutionally sound. Indeed, she wrote, the required disclosures of the sonogram image, fetal heartbeat, and description of development are "the epitome of truthful, non-misleading information."

In the end, Jones wrote that while a doctor must abide by these provisions of the law, a woman has the option of simply not looking at an image or not listening to the heartbeat or description – presumably by closing her eyes and sticking her fingers in her ears, the only apparent way to avoid unwanted information during the invasive procedure that utilizes a transvaginal probe. "The woman seeking an abortion may elect not to receive these images, sounds, or explanations. This election does not obviate the physician's obligations to display the sonogram images or make audible the heart ausculation; the woman may simply choose not to look or listen."

Not surprisingly, Perry was pleased with the ruling (as was Attorney General Greg Abbott). "Today's ruling is a victory for all who stand in defense of life," Perry said in a statement that in fact reflected the ideological basis of the law. "Every life lost to abortion is a tragedy, and this important … 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."

The news was not as well received by the CRR, which brought the suit on behalf of a number of Texas doctors. Indeed, Nancy Northup, CRR president and CEO said that the court decision allows the state new and broad power to interject itself into private, and heretofore legally protected, medical decision-making. "This law reflects the hostility of anti-choice lawmakers to women, their reproductive healthcare providers, and their constitutional rights," she said in a press statement. "This law, and this decision, inserts government directly into a private decision that must be protected from the intrusion of political ideologues. Anyone concerned with the erosion of our constitutional rights should be profoundly concerned and disappointed by today's events."

The Fifth Circuit ruling paves the way for the remaining portions of the law to be enforced. Providers have already compiled with the law's basic provisions – including that an ultrasound must be performed 24 hours before a termination, the central portion of the law that had not been enjoined – but now must incorporate the more controversial portions, including the stringent reporting requirements that, for example, must confirm that a woman is a victim of crime in order to allow her to avoid listening to the description of fetal development. When these previously enjoined portions of the law might take effect is still unclear; the CRR has the option of appealing the three-judge panel's decision to the entire Fifth Circuit panel, a move that could delay implementation. Moreover, the CRR says that there are additional concerns with the law that still need vetting in district court before the larger challenge to the law is closed. The CRR says it is considering all legal options available.