Abortion Sonogram Hearing: Novel Arguments from Plaintffs, So Judge Wants More Briefs

Opponents trying to block the state's new so-called sonogram bill may have a tougher road in Texas than they've had in other states.

This morning's hearing in Austin, before U.S. District Judge Sam Sparks, did not produce an immediate temporary injunction, as opponents hoped. Instead, Sparks instructed both sides to bring back additional briefs in another 15 days.

Most challenges to informed consent laws involve the "undue burden" test, which says that requiring a doctor to perform and discuss a sonogram before an abortion, and possibly wait 24 hours before performing the procedure, is too onerous.

Abortion providers in this case, represented by the New York-based Center for Reproductive Rights, are arguing completely different points: that the guidelines set out in the Woman's Right to Know Act are confusing and vague; that it violates the doctor's free speech rights with its prescriptive nature; and that the procedure puts a reproductive rights burden on women that is not extended to men.

After spending a number of questions trying to pin down lead attorney Bebe Anderson on which specific clauses in the law were unconstitutional, and establishing that undue burden was not a cause of action, Sparks admitted he was a bit perplexed with the parameters of the case.

"I don't know what this lawsuit is all about," Sparks admitted. "I thought I knew, but after the statement of the plaintiffs, I'm not so sure."

The state's ace in the hole, as presented by Senator Dan Patrick on the Senate floor, is the severability clause in the bill, which would allow a judge to strip out any provision of the law that is deemed unconstitutional but allow the balance to remain. So, for instance, a court might decide that a sonogram could be performed, but the woman would not be forced to listen to a physician's explanation. Or a sonogram might be required but listening to the fetal heartbeat, as prescribed by the Act, would be optional.

The stakes for doctors are high in the law, a point not lost on Sparks. A doctor who fails to perform the procedure, as prescribed, has not gained "informed consent" and could be subject to both loss of a medical license and potential criminal penalties under the Act. The bill also sets out random inspections of abortion providers, either at a facility or in a doctor's office, to make sure doctors are compliant.

Assistant Attorney General Erika Kane, who argued the case on behalf of the state, said that the Texas Medical Board had broader latitude on pulling a medical license and would be able to consider the specific parameters of individual cases. She also rebutted Anderson's contention that the guidelines were too vague.

The Center for Reproductive Rights has pending litigation in both Oklahoma and Kansas, although it has called the Texas law the most restrictive in the country. In Oklahoma, all parties agreed to a temporary injunction before the case moved into litigation. In Kansas, litigation focuses on the licensing of abortion providers, rather than the informed consent of a woman seeking an abortion.

Sparks, who probably won't have another hearing prior to his ruling on a temporary injunction, said he expected to make a decision before the law goes into effect on October 1. The next level for appeal, of injunction or statute, would be the Fifth Circuit Court of Appeals in New Orleans.

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