Ultrasound Reimposed by Appeals Court

Judge Sam Sparks

Last week's 5th U.S. Circuit Court of Appeals opinion – overturning an injunction that had barred final implementation of Texas' new ultrasound-before-abortion law – may "barely have touched on the issues" raised in a lawsuit before the district court last year. "But that's the Circuit," federal district Judge Sam Sparks said from the bench on Jan. 20.

Indeed, during a short hearing Friday afternoon, Sparks seemed resigned that the 5th Circuit had hijacked the case, offering a ruling that may legally bind his hands. As always, Sparks was Sparksian – he apparently found the situation absurd, commenting that the appellate court is now doing the district court's job, and was unconvinced that the 5th Circuit had made the right decision for the right reasons. At times he's waited a year for an opinion from the appellate court, he noted, but in this case, the court ruled and then ordered the law immediately implemented – even before the plaintiffs, a group of Texas doctors represented by the Center for Reproductive Rights, had time to respond.

The 5th Circuit's opinion – not a stretch to call "activist" – curtailed a legal challenge to the law, which requires women to submit to an ultrasound examination 24 hours before seeking a termination, to view a sonogram image, and to listen to the fetal heartbeat and a doctor-delivered description of fetal development. By statute, doctors are required to comply with each provision – regardless of medical necessity or the woman's wishes – and doctors who fail to comply could lose their medical licenses. A woman may opt not to view the image or hear the heartbeat, but unless she can certify that she is a victim of rape or incest or can prove her fetus has a gross abnormality, she must listen to the fetal description.

Those are among the provisions which prompted the CRR to sue. Sparks heard the case last year when CRR argued that by mandating medical procedures, the law violates doctors' First Amendment protections. Sparks granted a temporary injunction pending appeal, but the 5th Circuit ruled, essentially, that the law is constitutional. A three-judge panel, led by Chief Judge Edith Jones, ruled that the new law fell within the state's right to regulate medical practice, ensuring the "informed consent" of any woman seeking an abortion. And just days later, the 5th Circuit granted Texas' request to force immediate implementation.

Friday's hearing was a truncated affair; the 5th Circuit had made it clear it was taking over the case, and Sparks seemed resigned to let them have it. Arguing for Sparks to instead make a finding consistent with his previous ruling, CRR attorney Julie Rikelman argued that the 5th Circuit "overlooked some of the key arguments." For example, she said, the court ruled that displaying an image or providing audio of a fetal heartbeat is merely "factual" information and not furthering an "ideological" message. However, she argued, "forcing those images and sounds" on a woman who may not want them as part of a procedure that may not be medically necessary, "is ideological" and not "reasonable regulations to the practice of medicine." Sparks seemed sympathetic, agreeing that the 5th Circuit didn't directly address the actual arguments the CRR had raised in its suit. But, he said, "I don't know what you want me to do – you just can't ride a horse that's been buried."

The state's lead attorney, Jonathan Mit­chell of the Solicitor General's Office, also asked Sparks for a ruling that Sparks didn't think he could give – a declaratory judgement that the law does not offend the Constitution and does not "pose an undue burden on women" seeking abortion. Sparks reminded Mitchell that the federal courts do not file "advisory" opinions on issues not before them. It now appears that the fight over Texas' ultrasound law will remain an issue for the 5th Circuit (and potentially the Supreme Court) to resolve. On Jan. 18, the CRR announced that it has filed for a rehearing before the entire court.

There may yet be a way for Sparks to thread the needle the 5th Circuit has offered, suggests Blake Rocap, legislative counsel for NARAL Pro-Choice Texas, which has also challenged the law as having provisions too vague to enforce. While the 5th Circuit found nothing opaque in the statutory language, its Jan. 10 opinion reflects a major contradiction – noting that the woman who must undergo the ultrasound procedure (generally, an invasive transvaginal probe) may opt out from receiving the information gleaned from it. But the law itself says that doctors "shall" conduct the procedure and deliver the information obtained. If a woman opts out, why must a doctor then conduct the examination, if not for medical necessity? "What [then] is the state's compelling interest," Rocap asked, in performing a procedure on an unwilling patient?

Sparks' ruling is pending, and any ruling will almost certainly again be appealed to the 5th Circuit.