Judge Reluctantly Concedes he cannot prevent Texas Sonogram Law from taking effect

By Dave Andrusko

Federal Judge Sam Sparks

A clearly annoyed and frustrated U.S. District Judge Sam Sparks yesterday said he had no choice but to allow Texas new sonogram law to go into effect, the very same law he had temporarily enjoined in July.

Sparks, clearly fuming, wrote, “The concept that the government may make puppets out of doctors, provided it does not step on their patients’ rights, is not one this Court believes is consistent with the Constitution, in the abortion context or otherwise.” Near the end of his 11-page opinion, Sparks added for emphasis, “There can be little doubt that (the law) is an attempt by the Texas Legislature to discourage women from exercising their constitutional rights by making it more difficult for caring and competent physicians to perform abortions.”

In fact H.B. 15 is intended to strengthen the informed consent of women who chose to undergo abortions. The abortionist is required to perform and display a sonogram of the unborn child, make audible the baby’s heartbeat for the mother to hear, and explain to her the results of each procedure. In most cases, should the mother still wish to abort, she must wait 24 hours.

Last month  a three-judge panel of the 5th U.S. Circuit Court of Appeals not only lifted the injunction, but in the words of Chief Judge Edith H. Jones  “for the sake of judicial efficiency,” said the panel would hear any further appeal. That meant that whenever Sparks heard the case the resulting decision would be reviewed by the same three judges who concluded that the Center for Reproductive Rights “had failed to establish a substantial likelihood of success on any the claims on which the injunction was granted.”

The Houston Chronicle noted in its story that “Sparks spent 30 years defending doctors and hospitals while practicing law in El Paso before being appointed to the federal court.”

Nancy Northup is president of the pro-abortion Center for Reproductive Rights which filed suit on behalf of Texas abortionist and which is seeking a rehearing before the full 5th Circuit. In an emailed statement, Northrup wrote, “It is a terrible injustice that Judge Sparks could not rule in favor of protecting the constitutional rights of Texas doctors because of the Fifth Circuit panel’s decision.”

Sparks said, in effect, that his hands were tied by the appeals court panel’s decision, which did not stop him from unloading on the panel which he wrote had “eviscerated” the free speech rights of abortionists.

” This court believes Texas overstepped its legitimate authority when it substituted its medical judgment for that of doctors, and imposed a uniform method of treatment for all patients, rather than allowing physicians to make medically appropriate, case-by-case determinations,” Sparks wrote.

In  a letter posted on the Department of State Health Services’ website shortly before 6 p.m. last night, state regulators informed abortion “providers” that the law would be enforced immediately.

When the panel rendered its decision, National Right to Life Director of State Legislation Mary Spaulding Balch said, “We couldn’t have gotten a better decision.”  Reading from the opinion, Balch told NRL News Today that the language of the statute “expressly reserve[es] to the pregnant woman the right to refuse the physician’s verbal explanation, sonogram images, or heart ausculation… the woman may simply choose not to look or listen.”

The panel “understands it brilliantly,” Balch explained at the time, noting that Judge Jones had underlined the word “display.”

“The responsibility is on the abortionist to display the image on screen, leaving it up to the mother to decide whether or not to watch,” Balch said.   

Potentially, there is additional significance to the panel’s decision and Sparks’ actions Monday. Oklahoma and North Carolina have comparable ultrasound laws, both of which have been enjoined. Oklahoma’s law is pending in a state court, Balch said, North Carolina in a federal district court.

There was much talk by opponents of the law about it so-called “ideological” speech. Jones concluded the law’s language was just the opposite.

“To belabor the obvious and conceded point, the required disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information. … The appellees failed to demonstrate constitutional flaws” with the law, Jones wrote

Sparks had accepted virtually without exception the Center for Reproductive Right’s argument that law “abridges” the First Amendment free speech rights of abortionists by “compelling speech.” 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.’”

Sparks addressed  Casey directly, arguing that the 1992 Supreme Court decision “does not provide justification”  for the law’s requirements.

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