The “reasoning” behind the decision to enjoin Oklahoma’s Ultrasound Act

By Dave Andrusko

Tony Lauinger is State Chairman of Oklahomans for Life and Executive Vice-President of the National Right to Life Committee.

I was literally about to walk out the door last night when I learned that  a District Judge had enjoined Oklahoma’s trailblazing 2010 ultrasound law. So in the absence of the decision itself, yesterday’s story was based on bits and pieces found in a brief Associated Press account.

Having read Judge Bryan Dixon’s decision today (minus the verbiage, the ruling itself is barely one page), what jumps out is how flimsy is the opinion and how sloppily it is thought through.

What does the Ultrasound Act require? That the abortionist positions the ultrasound screen at an angle so that the mother can view the images, if she chooses. The law also requires that the abortionist “provide[s] a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable.”

First, the good news. There is every reason to believe the state will appeal the decision to the Oklahoma Supreme Court. (I’m told when the parties were in court last August Judge Dixon acknowledged that everyone knew his ruling would be appealed by the losing party.)

In addition, this decision is confined to the state of Oklahoma. A very similar ultrasound law passed by Texas was upheld in January by a three-judge panel of the 5th U.S. Circuit Court of Appeals. That affirmative ruling affects the entire circuit.

Then the bad news. In under a hundred words, Dixon threw out a commonsense, middle-of-the-road law supported overwhelmingly by the Oklahoma legislature, with numbers so large they were able to override a veto by then-Gov. Brad Henry(D).

The gist of his reasoning is that the law is an unconstitutional “special law.” Dixon wrote that the Ultrasound Act “improperly is addressed only to patients, physicians and sonographers concerning abortions and does not address all patients, physicians and sonographers concerning other medical care where a general law could clearly be made applicable.”

This rationale sounded (to be polite) strained, so I asked Tony Lauinger about it. Mr. Lauinger is State Chairman of Oklahomans for Life and Executive Vice-President of the National Right to Life.

“Attorneys who have looked at the opinion tell us that there are numerous examples in Oklahoma law of so called ‘special laws’ (as defined by this judge) that are currently in effect,” Lauinger said. He emphasized that there are two other important considerations that were glossed over in Dixon’s terse opinion.

“One thing overlooked is that almost all ‘abortion providers’ already do ultrasounds before abortions, so the law is not imposing an unnecessary procedure on women,” he said. Abortionists used ultrasounds to date the age of the about-to-be aborted baby.

“And abortion is different,” Lauinger said. “Abortion is the only so-called ‘medical procedure’ which results in the intentional taking of an innocent human life. It is entirely appropriate that the rules should be different than those applied to other ‘medical procedures.’”

Mary Spaulding Balch, J.D., director of NRLC’s Department of State Legislation, pointed out to NRL News Today that the law has been blocked since May 2010 when the New York-based Center for Reproductive Rights (CRR) challenged the law on behalf of Nova Health Systems, operator of Reproductive Services of Tulsa, and Dr. Larry Burns, who provides abortions in Norman, Oklahoma.

She quoted from a Wednesday CRR press release:

“The court has resoundingly affirmed what should not be a matter of controversy at all—that women have both a fundamental right to make their own choices about their reproductive health, and that government has no place in their decisions,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.”

The only problem with this is that Judge Dixon did none of that. He based his decision on the narrowest possible grounds—that the Ultrasound Act was purportedly a “special law”—and chose not to address any of the issues the CRR raised because they were now “moot.”

“The CRR simply sent out a fundraiser in the guise of a commentary on the decision,” Balch said. “The case in all likelihood is going to the Oklahoma Supreme Court where the law will receive a full airing.”

Asked for a final thought, Balch said that opponents want the world to think abortion is like any other procedure, no different from a tonsillectomy. “But ultrasound–the window to the mother’s womb–puts a bright light on that lie. It is a light they desperately want turned off.”

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