Appeals court upholds “Texas Sonogram Law”

AUSTIN—A Texas law requiring women seeking abortions to undergo a sonogram, and physicians to provide an audible heartbeat and physical description of the baby, is constitutional and may be enforced, a federal appeals court ruled on Jan. 10.

The decision by a three-judge panel of the U.S. 5th Circuit Court of Appeals overturned a temporary injunction issued last summer against Texas House Bill 15, known as the Texas Sonogram Law. U.S. District Judge Sam Sparks of Austin had argued the law placed the state in a position of advancing an “ideological agenda,” was “unconstitutionally vague” and violated the free speech rights of physicians and women.

“This is one of the most important victories in the past 10 years for informed consent for women seeking an abortion,” said Jonathan Saenz, an attorney with the conservative Liberty Institute, based in Plano. “Women and unborn children in Texas are safer today because of this decision and no longer subject to the abuse of abortion doctors who deny women critical medical information.” The Liberty Institute championed the bill before the Texas Legislature last year.

Meanwhile, the New York City-based Center for Reproductive Rights (CRR), which filed a class action lawsuit against HB 15 on behalf of Texas abortion providers last June, vowed to fight the latest decision.

Calling the ruling “extreme,” Nancy Northup, CRR’s president and chief executive officer, said in a news release: “This clears the way for the enforcement of an insulting and intrusive law whose sole purpose is to harass women and dissuade them from exercising their constitutionally protected reproductive rights. Until today, every court that has reviewed similarly intrusive laws has ruled the laws unconstitutional.”

But Chief Judge Edith H. Jones of the U.S. 5th Circuit wrote that the lower court “cannot provide a substantial likelihood of success on each of their First Amendment and vagueness claims,” adding that “required disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information” and are “‘relevant’ to a woman’s decision-making.”

Throughout the court’s ruling, Jones cited the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision, which upheld similar provisions for informed consent prior to an abortion.

Gov. Rick Perry, a Republican presidential candidate who signed the Texas Sonogram Law last May as a stronger version of the 2003 Texas Woman’s Right to Know Act, applauded the ruling shortly after it was announced.

“Today’s ruling is a victory for all who stand in defense of life,” Perry prepared in a statement. “Every life lost to abortion is a tragedy, and this important sonogram legislation ensures that every Texas woman seeking an abortion has all the facts about the life she is carrying, and understands the devastating impact of such a life-ending decision. We will continue to fight any attempt to limit our state’s laws that value and protect the unborn.”

The plaintiffs had argued that the sonogram requirements, including the audible heartbeat, the baby’s sonogram description and a verbal explanation of the procedure, constituted an “ideological message” to discourage the abortion and served no medical purpose.

Jones, the appeals court chief judge, countered by citing the Casey ruling, noting “such information ‘furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.’” Also, Jones wrote, “States may further the ‘legitimate goal of protecting the life of the unborn’ through ‘legislation aimed at ensuring a decision that is mature and informed, even when in doing so the State expresses a preference for childbirth over abortion.’”

“For the sake of judicial efficiency, any further appeals in this matter will be heard by this panel,” the court wrote.

Under the Texas law, a woman must be aware of the option to see her unborn baby via sonogram. It requires the person performing the sonogram—a physician or certified sonographer—to describe the dimensions of the baby and the existence of the baby’s arms, legs and internal organs, including a heartbeat.

Women living in Texas counties of fewer than 60,000 people or beyond 100 miles of an abortion facility and those in a life-threatening medical emergency are exempted from the 24-hour waiting period. Rural women would instead have to wait only two hours. Also, in cases of rape, incest or fetal abnormality, women could refuse hearing the verbal description from the sonogram.