Expectant mothers and their unborn babies won an important victory in federal court yesterday.
The U.S. Court of Appeals for the Fifth Circuit rebuffed a challenge to the Texas sonogram bill, a new law that, among other things, requires abortionists, before doing an abortion, to take and display to the mother a sonogram of the unborn baby and to let the expectant mother hear the baby’s heartbeat. The American Center for Law and Justice (ACLJ) had filed an amicus brief, on behalf of itself and the Houston Coalition for Life (HCL), supporting the Texas law. The case is Texas Medical Providers Performing Abortion Services v. Lakey, and the appeals court’s opinion is available here.
The new Texas law had been scheduled to apply to abortions after October 1, 2011. However, abortionists had filed a federal lawsuit challenging the new bill, and a federal district court on August 30 had granted a preliminary injunction forbidding enforcement of key sections of the statute. The state appealed, and the ACLJ filed a friend-of-the-court brief supporting the state’s appeal.
The district court had ruled that requiring abortionists to provide information to women as part of the informed consent process “compels speech” and triggers strict scrutiny. The court went on to hold that the Texas law was not likely to survive such strict scrutiny.
The ACLJ/HCL amicus brief attacked this part of the district court ruling. “Informed consent requirements, while they may literally compel speech, do not trigger strict constitutional scrutiny,” the brief explained. “Rather, the First Amendment requires only that such measures be reviewed for reasonableness. There is no exception to this rule just because the context involves abortion.”
This should be common sense. Informed consent is an established part of medical practice. Doctors are supposed to advise their patients, beforehand, of the nature and risks of a contemplated procedure. A physician who keeps his patient in the dark can be sued for malpractice. Nevertheless, the abortionists in this case argued for a different, demanding legal standard for informed consent. But as the ACLJ/HCL brief pointed out, to subject informed consent speech to strict scrutiny “would throw into disarray an entire area of law.” The Supreme Court has already rejected this notion: “Thus, a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion is, for constitutional purposes, no different from a requirement that a doctor give certain specific information about any medical procedure.” (Planned Parenthood v. Casey, 1992)
Happily, the three judges on the Fifth Circuit Court of Appeals panel unanimously agreed: “such laws are part of the state’s reasonable regulation of medical practice and do not fall under the rubric of compelling ‘ideological’ speech that triggers First Amendment strict scrutiny.”
The court of appeals went on to note that it is no objection that the woman, after receiving the information, might decide not to abort. “If the sonogram changes a woman’s mind . . . that is a function of the combination of her new knowledge and her own ‘ideology’ (‘values’ is a better term), not of any ‘ideology’ inherent in the information she has learned about the fetus.”
Regarding the particular disclosures required under the Texas law, the appeals court observed that it is “obvious” that the “disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information.” Indeed, the court added, denying up-to-date information “is more of an abuse to her ability to decide than providing the information.”
The case now proceeds back in the district court, where the state is well-positioned to win the case entirely. In the meantime, the Fifth Circuit has struck a valuable blow against the ongoing deception characteristic of abortion practice. Only by concealing the reality that abortion destroys a living child with a beating heart has the abortion industry been able to keep pregnant women in massive numbers on its lethal disassembly line. Now that women in Texas will be seeing and hearing their babies before the abortionist can apply the knife to them, we may see a very significant drop in the number of abortions done. If so, that will be a triumph of both knowledge and life.
LifeNews Note: Walter M. Weber is Senior Litigation Counsel for the ACLJ in the Washington, D.C. office. A highly regarded legal writer, Weber received his bachelor’s degree from Princeton University and his law degree from Yale Law School. Weber emphasizes First Amendment law and has written briefs in many landmark cases at the Supreme Court including NOW v. Scheidler, Lamb’s Chapel v. Center Moriches School District and Bray v. Alexandria Women’s Health Clinic. Weber has argued more than a dozen times in appeals before federal and state courts. Prior to joining the ACLJ, Weber served as a staff attorney with the Catholic League for Religious and Civil Rights.