Texas pro-abortionists ponder next move in light of Supreme Court ultrasound decision

By Dave Andrusko

ultrasound12When we reported Monday on the Supreme Court’s decision not to hear an appeal of an appeals court panel’s decision striking down the “right to view” portion of North Carolina’s ultrasound law, we noted that the one-sentence statement had no application to Texas’s very similar law which was upheld by the 5th U.S. Circuit Court of Appeals.

But, of course, that does not mean pro-abortionists in the Lone Star State aren’t (as they say)”considering their options.”

Speaking through their favorite local outlet—The Texas Tribune— Julie Rikelman (who is the litigation director at the Center for Reproductive Rights which filed suit against both the North Carolina and Texas laws) told Alexa Ura, “We are in the process of evaluating our legal options in light of [the] order out of the Supreme Court which allowed strong lower court rulings to stand.”

The immediate problem is that the Texas ultrasound law was not appealed to the Supreme Court. Ura explained that

Opponents of the Texas abortion sonogram law have already missed the deadline to appeal the 5th Circuit’s decision upholding it, but could now ask the 5th Circuit to reconsider the case, said Lyle Denniston of SCOTUSblog, a judicial blog that analyzes the Supreme Court’s moves.

“The challengers in Texas could go back to the court where they lost and try to get that court to reconsider by arguing that the Texas law is as vulnerable to challenge as the North Carolina law was,” Denniston said, but he added that it’s difficult to convince the appellate court to reconsider a ruling. “The court in the Texas case has a lot of discretion about reopening that case.”

The North Carolina law passed over the veto of the governor in 2011. It requires that an ultrasound image of the unborn child be displayed at least four hours prior to an abortion so that the mother might view it and that she be given the opportunity to hear the unborn child’s heartbeat. The law also provides for a “simultaneous explanation of what the ultrasound is depicting.”

But as NRL News Today reported last December, Judge J. Harvie Wilkinson III, writing for a unanimous three-judge panel of the 4th U.S. Court of Appeal, concluded, “The state cannot commandeer the doctor-patient relationship to compel a physician to express its preference to the patient.“ Although Judge Wilkinson conceded the law was “a regulation of the medical profession,” he concluded it was “ideological in intent and in kind.”

The Supreme Court’s action Monday left that appeals court decision intact.

We asked Mary Spaulding Balch, JD, NRLC director of State Legislation, about Judge Wilkinson’s “compelled speech” argument. She told NRL News Today, “There are numerous precedents which impact other aspects of people’s lives where laws require information be provided, and in many cases displayed and orally described.”

For example, when a person flies on a commercial aircraft, FAA regulations require that the crew give passengers a thorough oral explanation/demonstration of safety features of the plane or show a video that does the same. Passengers are not merely told that there is safety information on a card in the pocket in front of them. Even something that may seem very straightforward, like how to operate a seatbelt, is described in detail. Also, situations that may be unpleasant or even upsetting to passengers are discussed, such as loss of cabin pressure, water landings, fire evacuations and so forth. This information is shared, not to upset passengers, but to alert them and to equip them with information that could save their lives.

Surely, displaying a vivid and accurate ultrasound image provides women with precisely the sort of information that they need to make a very important decision. Displaying the ultrasound image gives women another piece they need to make a truly informed decision and spare them any possible regret they might have had without that piece of information.

Balch concluded

“The first amendment doesn’t protect the abortionist’s right not to give relevant information to his/her patient just because he doesn’t want the patient to know.”