By Dave Andrusko
On Tuesday we wrote about a hugely significant pro-life victory. In an opinion written by Chief Judge Edith Jones, a three-judge panel of the 5th U.S. Circuit Court of Appeals lifted a temporary injunction against Texas’ sonogram law (www.nationalrighttolifenews.org/news/2012/01/court-of-appeals-lifts-temporary-injunction-against-texas-sonogram-law). But, as we shall see momentarily, pro-abortionists still hold out hope.
U.S. District Judge Sam Sparks bought the argument of the Center for Reproductive Rights (CRR) hook, line, and stinker—that the free speech rights of abortionists had been abridged by H.B. 15, signed into law by pro-life Gov. Rick Perry, by “compelling speech.”
The panel firmly disagreed. Jones noted that the same kind of arguments were offered up (and rejected) by the Eighth Circuit following the 1992 Planned Parenthood of Southeast Pennsylvania v. Casey decision.
Referring to Casey specifically, Jones noted that the plurality opinion concluded that “’the giving of truthful, nonmisleading information’ which is ‘relevant…to the decision’ did not impose an undue burden on the woman’s right to an abortion.’”
Jones added, “’Relevant’ informed consent may entail not only the physical and psychological risks to the expectant mother facing this ‘difficult moral decision,’ but also the state’s legitimate interests in ‘protecting the potential life within her.’”
Both Robin Marty, writing on the pro-abortion blog, RHRealityCheck, and Women’s Health Policy Report, took hope from an Associated Press story written by Chris Tomlinson. Tomlinson wrote that Jones did not immediately dissolve the injunction, which gave the CRR at least 14 days to decide whether it wants to request a rehearing in front of the full 5th Circuit.
In one sense that would seem unlikely, given that the CRR would have to convince a majority of the full 5th Circuit that Jones made “an error of exceptional public importance or an opinion that directly conflicts with prior Supreme Court, Fifth Circuit or state law precedent.” And “Only 1 percent of cases are reheard in this way, according to court documents, and most of those are at the suggestion of one of the judges,” according to the AP.
But if CRR did win a rehearing, it could “appeal Jones’ ruling to the Supreme Court and ask that the law remain on hold pending a ruling there,” according to Tomlinson. “Nancy Northrup, the center’s president, said they are studying their options.”
According to the AP, “If there is no rehearing, the court issues a legal mandate eight days after the appeal period making Jones’ ruling binding on Jan. 31.”
In issuing his preliminary injunction Judge Sparks agreed with the abortionists. He has scheduled oral arguments for Jan. 20.
If Sparks declares the law unconstitutional before January 31, then H.B. 15 remains blocked, according to the AP. Either way, the case could/would go back to Judge Jones and the 5th Circuit.
National Right to Life News Today asked NRLC Director of State Legislation Mary Spaulding Balch to comment. She said
“It is no surprise that our opponents would fight the Texas law tooth and nail. It is a much stronger law than one that simply ‘offers’ the mother an opportunity to view her child on an ultrasound. Rather it places the responsibility on the abortionist to display the image while allowing the mother to turn her head away or shut her eyes. What could be more truthful than the ultrasound image? The ultrasound provides a window into the womb. It allows the mother to see her unborn child and to experience the humanity of the unborn child before it is too late. She has the right to have the opportunity to understand the consequences of her decision so she might be able to spare herself from regret and save the child’s life.
“Many abortion providers claim that they already offer the mother the opportunity to view the ultrasound. In practice, however, the abortion providers offer the option to view the ultrasound in such a way that places the burden on the mother in crisis. For instance, some abortion providers note the opportunity within a lengthy consent form, and then require the mother in crisis to ask for the opportunity once she is with the doctor. The burden should not be on the mother to ask for the ability to view the ultrasound, it should be on the abortion provider. The Texas law places the responsibility to provide information where is appropriately belongs: on the abortionist.”
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