Texas can begin enforcing its new pre-abortion sonogram law now, following a ruling this morning from the U.S. Fifth Circuit Court of Appeals.
The law says women seeking an abortion must have a sonogram done 24 hours prior, and their doctor must play audio of the fetal heartbeat and describe what’s on the screen. The New York-based Center for Reproductive Rights jumped into federal court to challenge the law this summer, and in August, U.S. District Judge Sam Sparks in Austin put the law’s enforcement on hold, agreeing that many of its new requirements violated doctors’ and patients’ free speech rights.
Sparks wrote the law “compels physicians to advance an ideological agenda with which they may not agree, regardless of any medical necessity, and irrespective of whether the pregnant women wish to listen.”
Fans of the new law quickly dismissed Sparks’ ruling as the word of a meddling Austin leftist—a Bush-41 appointee, no less—who’d already made up his mind. “It is clear to me, from the inflammatory language in the order, that Judge Sparks was predisposed to this decision,” state Sen. Dan Patrick, one of the bill’s sponsors, said.
Sparks conceded in his opinion that he “has grave doubts about the wisdom of the Act.” He went even further, too, calling out its supporters for their hypocrisy:
It is ironic that many of the same people who zealously defend the state’s righteous duty to become intimately involved in a woman’s decision to get an abortion are also positively scandalized at the government’s gross overreaching in the area of health care.
He’s got a point. But Sparks’ lively opinions have also gotten him in trouble with the judiciary fun police in the past. When Sparks invited lawyers to a “kindergarten party” to learn the basics of our American court system, Chief Justice Edith Jones of the Fifth Circuit Court of Appeals took him to task, in a letter addressed to Sparks and circulated far and wide:
“It has not escaped my attention, or that of my colleagues or, I am told, nationally known blog sites that you have issued several ‘cute’ orders in the past few weeks… Frankly, this kind of rhetoric is not funny,” Jones wrote. “I urge you to think before you write.”
Today, Jones took issue with Sparks’ thinking too, in the appeals court’s opinion in the sonogram case.
Jones wrote the requirements in the new sonogram law weren’t free speech violations, after all, because they’re covered by the 1992 U.S. Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. Notably, it’s a case Texas’ lawyers cited in their defense. Casey opened the door to tougher new “informed consent” requirements from states, and tightened other standards after Roe v. Wade.
As it happens, Jones comes to this case with some predispositions of her own.
Back in 2004, Jones was part of an appellate panel that dismissed a suit from Roe plaintiff Norma McCorvey, who’d hoped to get a second opinion from the Supreme Court, after deciding abortion shouldn’t be legal. “McCorvey now argues that abortion harms women – both emotionally and physically – and that social norms have changed, making single motherhood a more palatable option,” the Austin Chronicle reported at the time.
Jones conceded that McCorvey’s suit wasn’t a live issue anymore, but wrote she hoped the Supreme Court would take up Roe again soon:
In sum, if courts were to delve into the facts underlying Roe … they might conclude that the woman’s ‘choice’ is far more risky and less beneficial… That the Court’s constitutional decision-making leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer.
In the appellate court’s opinion today, Jones follows the same logic that drove Perry, Patrick, and the law’s House author, Rep. Sid Miller: A woman going in for an abortion doesn’t really know what she wants. During the session, Patrick said the bill “empowers” women.
Jones cites a line from Casey, much-quoted by folks backing abortion restrictions, saying the government can’t just allow a woman to go through with an abortion, willy-nilly, “only to discover later, with devastating psychological consequences, that her decision was not fully informed.” The line plays into a popular myth that abortion comes with a greater risk of mental health problems.
Jones also points out that it’s important to mandate that the sonogram’s performed, precisely because the woman might change her mind:
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. Only if one assumes the conclusion of Appellees’ argument, that pregnancy is a condition to be terminated, can one assume that such information about the fetus is medically irrelevant.
Read another way, Jones is suggesting that what those meddling New Yorkers at the Center for Reproductive Rights really want is just to end all the pregnancies.
The group’s CEO, Nancy Northup, issued a statement this afternoon calling the decision “extreme,” and saying it “clears the way for the enforcement of an insulting and intrusive law.” Perry called it “a victory for all those who stand in defense of life.”
The case will go to trial in Austin next week in Sparks’ court, where the two sides will duke it out over the rest of the law’s requirements, not just the free speech questions. However that comes out, today’s ruling gives a good idea how it’ll be met on appeal.