From Womb to Bill to Law to Court?

Bill co-author Sid Miller was among the pro-probe partiers at the ceremonial signing May 24.

Although many folks suspected Gov. Rick Perry would find a spectacle as backdrop for signing the new ultrasound-before-abortion bill – perhaps on a Sunday after church? – he instead chose a more sedate route, signing the measure into law on May 19. It's set to take effect Sept. 1, but a legal challenge appears likely. (Not one to pass up a chance to pander, however, Perry did follow up with a "ceremonial" signing May 24, where he was joined by bill authors Rep. Sid Miller, R-Stephenville, and Sen. Dan Patrick, R-Houston, for a photo op with the press.)

Abortion providers have little time to prepare for implementing the law, which would require any woman seeking an abortion to undergo an ultrasound procedure at least 24 hours prior to termination and, except in certain limited circumstances, listen to a description of fetal development. For those providers, the stakes are high: Failure to comply with the law's various provisions can cost a doctor his or her license – a troubling situation given the fact that many providers say the law's language is tragically vague. For example, the measure allows some women to avoid two features of the law – viewing the ultrasound image and listening to the fetal heartbeat – but gives no guidance on when a woman should be informed of her ability to opt out. And, while she is lying prone with feet in stirrups, what will it take to ensure she isn't a captive audience for the images and sounds? Moreover, the bill provides an exemption to the 24-hour rule for women who live more than 100 miles from an abortion provider, but whose responsibility is it to check that the 100-mile rule is met? Does the clinic have to vet the client's address and then check to see what providers are close by? Or must the patient provide documentation? And other opt-out contingencies – such as for victims of rape or incest (as reported to police, unless reporting would put the woman's life in danger) or when a fetus has an irreversible abnormality – present further conundrums. For example, a woman must certify that one of the exemption conditions exists, but what if she lies? Does she get in trouble, or does that also implicate the doctor? And if that is the case, how does a clinic or doctor verify the truth of the affidavit? In short, the text raises many questions and provides few answers.

There also remains a question of whether someone will sue to keep the law from taking effect – namely the Center for Reproductive Rights, which last year filed a legal challenge to a similar law in Oklahoma for its violation of privacy rights, for forcing a woman to hear information that may not be relevant to her medical care, and for interfering with the doctor-patient relationship, which potentially degrades the relationship by compelling the doctor to deliver "unwanted speech," according to the CRR. A judge in July 2010 blocked enforcement of the new law until the legal challenge could be settled; the suit is still pending.

Bebe Anderson, senior counsel for the CRR, says the center has been monitoring closely Texas' ultrasound legislation and is preparing to challenge the law in court. "It is an extreme intrusion and patronizing to women," she said, adding that it would be too soon to discuss the possible grounds for the suit, but that "certainly the law has some of the same serious flaws that Oklahoma's has .... It is very important that this law not go into effect." For starters, the measure represents an attack on the doctor-patient relationship and a troubling view of women as incapable of making serious medical decisions. "It is particularly extreme and offensive," she said.

Anderson would not say when the suit might be filed but said the center is "certainly well-aware of the effective date" attached to the law.