Judge Hears Arguments Over Texas’ New Sonogram Law

By Dave Andrusko

Pro-life Texas Gov. Rick Perry

U.S. District Judge Sam Sparks said Wednesday that he hopes to rule by September whether Texas’ new sonogram law should go into effect as scheduled.

Signed in May by pro-life Gov. Rick Perry, the measure says that the abortion-vulnerable woman must be able to see an ultrasound at least 24 hours before an abortion is performed and that the abortionist must give “in a manner understandable to a layperson, a verbal explanation of the results of the sonogram images, including a medical description of the dimensions of the embryo or fetus, the presence of cardiac activity, and the presence of external members and internal organs.

The pro-abortion Center for Reproductive Rights (CRR) filed suit against the law in June before requesting an injunction to prevent the law from going into effect September 1. Yesterday lawyers for CRR and the state of Texas squared off in Judge Sparks’ chambers in Austin.

In its June class action suit, the New York-based group argued that the law violates the equal protection clause by “subjecting [women] to paternalistic ‘protections’ not imposed on men” and the First Amendment rights of doctors by “forcing physicians to deliver politically-motivated communications” to their patients. However, according to news accounts, CRR lawyers yesterday “focused on whether the law was unconstitutionally vague, and how the law’s statutes would be applied.”

After defending the law against charges of vagueness, “[Assistant Attorney General Erika] Kane urged the judge not to overturn the entire law if he found constitutional issues with part of the act,” the Texas Tribune reported.

Last week Texas Right to Life offered a lengthy rebuttal to CRR’s lawsuit under the headline, “Center for Reproductive Rights Challenges Texas Sonogram Law,” excerpts of which we reproduce below.

The Center for Reproductive Rights (CRR), a nonprofit pro-choice legal team, filed a class action lawsuit on June 13th against the new sonogram law on behalf of “all Texas medical providers performing abortion.”  The CRR is so desperate to enjoin and overturn the sonogram law that they are now recruiting abortion providers from across Texas to join the suit, an unprecedented action.  A summary of their complaint posted the CRR website states:

The Center argues that the ultrasound requirement violates the First Amendment rights of both the doctor and the patient by forcing physicians to deliver politically-motivated communications to women, regardless of the woman’s wishes.  The Center also argues that the law discriminates against women by subjecting them to paternalistic “protections” not imposed on men.  In addition, the Center argues that the sonogram requirements violate basic principles of medical ethics and serve no medical purpose.

This single paragraph includes several fallacious claims.

Claim #1:  HB 15 violates the first amendment rights of abortion providers, forcing physicians to deliver politically-motivated communications.

Fact:   Under the new law, physicians would be required to provide the same type of medically objective information as they would be required to provide with any other life-changing surgery, keeping abortion to the same health and safety standards as other surgical procedures.  Additionally, abortion providers will no longer be able to obfuscate fetal development with phrases such as “blob of tissue” and “clump of cells,” or describe abortion as “removing the pregnancy,” among other euphemisms.  This is not the first time legislators have passed patient protections and required advance disclosure of risks to consumers.  Clear examples are HIPAA, food labels, and the FDA’s requirement that tobacco companies list the risks of smoking on every pack of cigarettes.  Abortion is so much more serious than the violation of these government-imposed medical standards.

Claim #2:  These communications will be delivered regardless of the woman’s wishes.

Fact:   The sonogram law allows for women to opt out of receiving the required information in certain instances.  For example, if a fetal abnormality is diagnosed in the womb and the woman chooses abortion, she can opt out of receiving the verbal explanation of the sonogram before the abortion.  A woman whose pregnancy is a result of rape or incest can also choose not to receive the verbal explanation of the sonogram images.  A pregnant minor also can exercise a right not to hear the verbal explanation of the sonogram.

Otherwise, the physician must give the verbal explanation, display the sonogram image for the woman to see, and make the fetal heartbeat audible when present.  Prior to the abortion, every woman must sign a statement verifying that she understands that the pre-abortion sonogram must be performed, that she has the right to view the sonogram and hear the heartbeat, that she is seeking treatment of her own free will and without coercion, and that she is required to hear an explanation of the sonogram if she does not fall within one of the three exemptions.

When traveling by airplane, FAA regulations require that flight attendants use a specific script or play a specific safety announcement.  Many passengers choose not to listen or watch or acknowledge the announcement, yet federal law requires the full informed consent of passengers, even those who chose not to listen, look, or learn about emergency exits or evacuation procedures or the location of the lavatories.

Claim #3:  The law discriminates against women and puts an undue burden on them that would not be put on men, such as the 24-hour waiting period, and thus, two office visits.

Fact:   First of all, men are generally afforded a high standard of care for all surgical procedures, and the health of women should be held to the same, if not a higher, standard, particularly when they are carrying a whole, separate human being in their bodies.

Secondly, specialized medical procedures often do require two office visits—the first for consultation, the second for the actual procedure, regardless of the patient’s gender.  Except in the case of a medical emergency, no surgery is ever done on a walk-in, same-day basis; this is not due to existing laws, but rather this standard is a common sense safety practice for patients to ensure that their decisions are fully considered, free from pressure, and well-informed.

Thirdly, in Planned Parenthood v Casey, the SCOTUS [Supreme Court of the United States] ruled that waiting periods and informed consent before abortion do not place an undue burden on a woman’s right to terminate her pregnancy.  The 24-hour waiting period will afford women the opportunity to reflect on their options before making a final life-altering decision.

Claim #4:  The sonogram requirement violates basic principles of medical ethics and serves no medical purpose.

Fact:   Planned Parenthood and NARAL suggest to their member-abortion providers that a sonogram before an abortion should be the standard of care for abortion.  A sonogram prior to an abortion confirms the age, size, and location of the unborn child, identifies possible current problems, and also indicates what type of abortion procedure should be utilized to kill this particular child.   The sonogram is, therefore, an essential diagnostic tool.  Furthermore, the sonogram is equal or comparable to any other x-ray taken and/or shown to and reviewed with a patient before any other surgery.

The sonogram bill will undoubtedly save lives and spare many women from the pain of a regretted abortion.  Texas Right to Life is dedicated to defending this historic Pro-Life legislation, confident that the legislation is constitutional and will foster countless decisions to choose life over abortion.

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