Judge Sparks enjoins state from enforcing the sonogram law
The opinion is 55 pages long, and much of it involves a tedious argument over the certification of a class (abortion providers) that involved the sort of legal minutiae that made law school unbearable. I was in court on July 6, the day the case was argued, and anyone who listened to Judge Sparks should have known that he was not going to find for the state. The reason was not bias, or premeditation, as Senator Patrick suggests in his press release. It was that Judge Sparks made several references to the vagueness of the statute in open court. The state had no answer for this. The second reason why the state was in a losing position is that the statute mandated speech that was required of doctors. There is no freedom of speech when speech is mandated by law. To compel speech violates the First Amendment, and to compel listening to speech, as women would have to do, does so as well. That was the second fatal weakness of the state’s case. We will hear a lot of nonsense in the coming days about judicial activism, but the simple fact is that the state overstepped its bounds when it compelled speech by doctors to achieve a political purpose.
Tagged: Judge Sam Sparks, sonogram law
Pat says:
Ghosts sit around the campfire and tell Sam Sparks stories.
Sam Sparks fought the law, and Sam Sparks won.
Sam Sparks doesn’t need detergent. He shouts the stains out of his clothes.
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Americanus says:
Of course it’s not surprising the right wing fringe will call Sparks’s decision “judicial activism”, ignoring that deciding how the First Amendment constitutional right applies (and must be protected from “legislative activism” — or more accurately “right wing political activism”) is something federal judges must do to fulfill their duty.
Also of course, those same right wing types will totally ignore the egregious ruling last week by the Texas Supreme Court in the Texas
Mutual Insurance Co. v. Timothy J. Ruttiger case, where “conservative” Republican justices — surprise, surprise — found in favor of a big business insurance company and against an average Texas citizen, ignoring 20 years of judicial precedent and legislative history to curry favor with the corporate defendants in a civil case just like they do 90+% of the time. If you want to see a blatant case of judicial activism, read that case.
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Real Tea Party, not evangelical BS Reply:
August 31st, 2011 at 3:17 am
Note to Robert Morrow: how about an ad to find something on Patrick? If you run it in “Teen Beat,” I bet you get a hit! Also, “Boy’s Life” might work.
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Aggie for Kay says:
Seems like there’s plenty of legally required speech…miranda rights, sworn oaths, etc.
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Vernon Reply:
August 31st, 2011 at 10:13 am
The examples you cite legally requires the government to communicate something to the citizenry (miranda rights), not between two private parties.
I’m not sure about sworn oaths. I’m assuming you mean swearing an oath in court. My first thought is that the forced oath only requires the person to testify to the truth, not to advocate a specific position on an issue.
Are there other examples of forced speech you could reference? Any mandating speech between private parties?
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Anonymous Reply:
August 31st, 2011 at 10:22 am
flight attendants are mandated to deliver safety instructions to travelers
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Vernon Reply:
August 31st, 2011 at 11:21 am
Good example. You could also reference warning labels on cigarettes and alcohol, I suppose. However I see that type of speech as protecting the safety of the public at large.
I wouldn’t use that same logic to justify this law. Doctors already make you sign informed consent papers with any surgery.
But protecting the public of very real dangers is much different than forcing doctors to advocate a certain political position through legislation.
It’s an interesting exercise in the legal world. I’m curious to see how it plays out.
Alan Reply:
August 31st, 2011 at 6:11 pm
As per rules created by the FAA, a federal agency, not at the state level. No one forces passengers to listen to the seatbelt-and-exit-sign schpiel. But more importantly, those rules do not apply on private aircraft. The doctor-patient relationship is more analogous to flying one’s own private aircraft than it is to a major commercial airline, which arguably has a public safety aspect to what it does or does not do.
Pat Reply:
September 1st, 2011 at 9:47 pm
Major airlines are common carriers. Higher duty of care, different type of plaintiff listening to the warnings. Note that the FAA safety schpiels are not required on private aircraft.
Texas Patriot says:
Anyone who has practiced in front of Judge Sam Sparks knows that he is a no-nonsense, straight shooting Republican-appointed judge. He tells it like it is. Any lawmaker who calls Judge Sparks a liberal, judicial activist is shortsighted and not taking personal responsibility for poorly drafted legislation. Acceptance of failure is the first step to better serving the people of Texas in the future.
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Pat Reply:
September 1st, 2011 at 9:48 pm
Agreed! From personal experience!
Some judges are like law professors – they like to embarrass you in front of others.
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JudicialWatch says:
Anyone who really knows Sam Sparks also knows he was a baby killing anti-lifer long before he got on the federal bench.
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Ed says:
I challenge “judicialWatch” to use their actual name when calling someone names like that. Otherwise, crawl back into your hole.
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JK says:
The state is not compelling speech from random individuals who have no formal connection to the state other than residence. Rather, the law compels speech specifically from doctors who are licensed BY THE STATE to practice in Texas. Supreme Court case law allows government to compel speech as part of “reasonable” regulations, particularly where the state licenses the privilege to practice a profession. The state is under no obligation to license any professional who does not want to accept and follow the legal obligations that come with the license. Ask a public school teacher.
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Mr. Smith Reply:
August 31st, 2011 at 6:49 pm
JK,
You said THE STATE four times in your quasi-legal diatribe. The State can do this, the State can do that. What I want is the STATE out of my life as much as possible.
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Kenneth D. Franks says:
It is odd that the same people who want the government out of our health care were the most ardent supporters of this law.
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Rog says:
Under Senator Patrick’s thinking, when the political tide turns, pro-life doctors could be forced to tell pregnant women about the benefits of an abortion.
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Blue Reply:
September 1st, 2011 at 9:07 am
You don’t think Planned Parenthood tells its “clients” about the benefits of abortions already???? Hell, their whole business model is based on convincing young girls that their lives will be better without a child.
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Godmother Reply:
September 1st, 2011 at 2:41 pm
Blue
Have you ever been to a PP clinic? Didn’t think so.
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Anonymous Reply:
September 2nd, 2011 at 9:28 am
Reality and wingnuts aren’t on speaking terms
Blue says:
Whatever one thinks of the issue, Sparks isn’t close to the last word on this. Sonogram bills like Texas’s will eventually go to the USSC and, unless the composition of that Court changes, will overturn Sparks’s ruling.
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Sam Sparks doesn't win... says:
…he just let’s you lose.
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Robert Morrow says:
The Democrats will use that sonogram bill like a machine gun on Rick Perry in swing states and with suburban women voters.
Great tool to get nominated; great poison to lose in a general election.
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