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

Don’t be deterred by the legalese quoted in this article. I promise that reading the orders of the Court will be fully worth the reader’s while in entertainment value. The Court’s discussion appears in italics.

I. On August 9, Patrick and Miller filed motions for leave t0 appear as Amici Curiae in the sonogram case. Federal District Judge Sam Sparks responded thusly, denying the motion:

Both parties  (Texas Medical Providers Performing Abortion Services) and David Lakey, M.D.) “are well represented by competent and diligent counsel, and neither they nor this Court needs assistance from Senator Patrick or Representative Miller–particularly when much of their “assistance” is nothing more than thinly-veiled rhetoric. This is a federal lawsuit about the constitutionality of a statute, not a soapbox for politicians or a sounding board for public opinion. The Court is confident counsel in this case can protect their clients’ interest all by themselves.

II. Just three days later [August 12], Patrick and Miller filed the exact same Motion for Leave to File an Amicus Brief. The Court wrote:

On August 9, 2011, the Court denied a similar motion filed by Senator Patrick and Representative Miller. The Court denies this one for the same reason, namely, counsel for the parties in this case are more than capable of advocating for their clients’ positions without outside input. This is especially true where, as here, that input comes in the form of, among other things, commentary by legislators on “the clear legislative intent of H.B. 15′s severability clause.”

If the severability clause as clear as the Representative indicate, their interpretive assistance will not be required. And if it is not, it would be unhelpful, if not improper, for the Court to look to statements made by a subset of the Legislature, in a document prepared for the purpose of litigation, to determine legislative intent.

As stated in its August 9, 2011, Order, the Court will not allow this lawsuit to be used as a vehicle for advancing a political agenda, or as a platform for rhetorical grandstanding. Although the outcome of this case will likely have repercussions outside these proceedings, the resolution of this case will depend solely upon the legal issues presented. The Court’s time is better spent considering the arguments of the parties than addressing the opportunistic petitions of outsiders.

III. Not to be deterred, Patrick and Miller tried yet again. On August 22, the Court wrote:

BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically the latest in an unfortunately long line of motions for leave to file an amicus brief. Having reviewed the document, the relevant law, and the file as a whole, the Court now enters the following opinion and order DENYING the motions:

The Court has already turned down two extremely tempting offers to transform this case from a boring old federal lawsuit into an exciting, politically charged media circus. As any competent attorney could have predicted, the Court declines the latest invitation as well.

However, the Court is forced to conclude that Allen E. Parker, Jr., the attorney whose signature appears on this motion, is anything but competent. A competent attorney would not have filed this motion in the first place; if he did, he certainly would not have attached exhibits that are both highly prejudicial and legally irrelevant; and if he foolishly did both things, he surely would not be so prejudicial as to file such exhibits unsealed. A competent attorney who did these things would be deliberately disrespecting this Court and knowingly shirking his professional responsibilities, offenses for which he would be lucky to retain his bar card, much less an intact bank balance.

For Mr. Parker’s sake, and because the Court has not time to hold a sanctions hearing–in part because it must take time out of deciding the actual legal issues in this case to address the self-serving entreaties of attention-seekers like Mr. Parker–the Court assumes Mr. Parker is as incompetent as he appears. Rather than sanction him, the Court simply does what Mr. Parker would have done if he was a competent professional, and seals attachment 7 to his motion.

IT IS ORDERED that Parker’s motion for leave to File an Amicus Brief is DENIED.

[Allen E. Parker is an attorney with the Justice Foundation, based in San Antonio]

* * * *

After I posted this article, I received an email from Senator Patrick, which I will publish below, in accordance with his request:

Paul,

Your blog post about the sonogram litigation is incorrect and mean-spirited. The sonogram bill has been a legislative priority of mine since 2007. I have carefully crafted and negotiated this bill throughout my five year tenure. That is why I agreed, with Rep. Miller, to have the Liberty Institute file an amicus brief regarding the intent and constitutionality of our bill.

I did not, however, have anything to do with the motions filed on August 12 or August 22, as you state in your post. Your facts are just flat WRONG. Your bias toward me, which is on full display in your article, apparently stopped you from doing any research or fact checking before posting your article? The motions you reference were filed by others. I had nothing to do with them. One phone call would have answered any questions you had regarding this issue. You obviously never bothered to make that call.

I would appreciate it if you would release a correction with equal exposure to today’s posting. I do not apologize for wanting women to have all the facts before receiving an abortion. My philosophy may not win you or your readers to my side, but the facts should not be distorted in order for you to launch an attack on me or anyone else.

Senator Dan Patrick

My response:

I’m not sure what Senator Patrick wants me to correct. He appears to be concerned that I said that he filed various motions, when in fact they were filed by others. I based my reporting of this item on the language used by the Court. The Court states, “On August 9, Patrick and Miller filed motions for leave t0 appear as Amici Curiae in the sonogram case.” Additional motions were filed on August 12 and August 22. About the August 12 filing, the Court says, “The Court denies this one for the same reason, namely, counsel for the parties in this case are more than capable of advocating for their clients’ positions without outside input.” Concerning the August 9 motions, the Court says that the motions were filed by Patrick and Miller. Concerning the August 12 filing, the Court does not say who filed the motions, though Senator Patrick, in his letter, says that he and Rep. Miller had the Liberty Institute file an amicus brief (but makes no mention of the date). He does say that the motions filed on August 12 and August 22 were filed by “others.” If I have made a grievous error or omission, I apologize to Senator Patrick, but, frankly, I don’t know what it was. I do not think that I have demeaned him in any way or questioned his commitment to his principles. I published his letter word for word, as he requested. It is the Court that has criticized his behavior, not I.  My quotes of the Court were taken directly from the orders of August 9, 12, and 22nd, which I obtained from the clerk of the Federal District Court for the Western District of Texas.

* * * *

8/26/12:15 a.m. I have learned from a source familiar with the case that Joe Nixon and Trey Traynor may have filed motions on behalf of Senator Patrick and Representative Miller. Kelly Shackelford of the Liberty Institute may have filed motions as well. My information came from a telephone conversation and was to have been repeated in an email. I have not received it. If Senator Patrick’s concern is that I attributed actions to him that were actually performed by others acting on his behalf, I apologize for this, but it seems like “harmless error.” If the email comes through and provides more facts, I will publish the information.

Tagged: Allen E. Parker, Judge Sam Sparks, Representative Sid Miller, Senator Dan Patrick, the Justice Foundation

The New-York based Center for Reproductive rights has brought a class-action lawsuit in the Western District of Texas on behalf of medical providers of abortions. The Center is seeking a temporary injunction against the implementation of the sonogram bill. I attended the proceedings Wednesday  morning in federal court. Frankly, I didn’t think that the lead counsel for the Center did a very good job. She chose not to make an “undue burden” argument, a tactic that appeared to take Sam Sparks, the trial judge, by surprise. Maybe there was language in the statute that was not favorable to such an argument. “I thought I knew what this case was about,” Sparks said, “but now I’m not so sure.” Counsel replied, “We have not asserted a right to privacy/undue burden claim.” Sounds like somebody needs to amend their petition, pronto.

The following comments are from notes that I took at the hearing. The notes are followed by the Center’s complaint, which sets forth the issues they are arguing:

* The Center said it was making a First Amendment claim, that patients have a right not to be forced to listen to information they do not want to hear. ”We think strict scrutiny applies to the forced speech claim,” counsel argued. “The state doesn’t have an unlimited right to mandate speech.”

* The case seemed to be going against the Center, until Sparks started asking questions about the statute. Then it seemed clear that he had well founded concerns that the statute was vague.

* The State argued: the plaintiff has not shown a likelihood of success on the merits. (The Center was asking for a temporary injunction, a legal action concerning which the “likehood of success”: becomes important.

* The more Sparks quoted from the statute, the more concerned he seemed to become about its vagueness: “It says here, any doctor may be criminally prosecuted. That gets my attention.” In discussions over the roles of the state’s two enforcement agencies, the Texas Board of Medical Examiners and the Department of State Health Services, Sparks again questioned the State’s argument. “How are they going to change the word “shall?” he asked the State’s attorney.

Another exchange relating to vagueness: Sparks asked, “What does the phrase, ‘in a manner evident to a lay person’ mean? And you just say, ‘Well, everybody knows that.’”

The problem for the plaintiff is that they may have erred by not asserting an undue burden claim. The problem for the State is that the judge clearly thinks that the statute is vague.

* * * *

The style of the case is TEXAS MEDICAL PROVIDERS PERFORMING
ABORTION SERVICES, a class represented by METROPOLITAN OB-GYN, P.A., d/b/a REPRODUCTIVE SERVICES OF SAN ANTONIO and ALAN BRAID, M.D., on behalf of themselves and their patients seeking abortions v. David Lakey, who is the Director of the Department of State Health Services.

This is the Center’s description of the case:

Summary: On June 13, 2011, the Center for Reproductive Rights filed a class action challenge against Texas’s new abortion ultrasound law.  The challenged law prohibits a woman from getting an abortion unless the doctor who will provide the abortion (or a certified ultrasonographer) performs an ultrasound on the woman, takes steps to show and describe the ultrasound images to the pregnant woman, and plays the sound of the fetal heart.  The law requires the physician to personally place the ultrasound images where the woman can see them and describe the images to the woman in detail, regardless of her wishes.  The suit is brought on behalf of all Texas medical providers of abortion services and their patients.  The law is scheduled to go into effect on September 1, 2011.  The woman must then wait at least 24  hours after the ultrasound before she can obtain an abortion (the 24-hour waiting period is shortened to two hours for women who live more than 100 miles from an abortion provider). [all emphasis is original]

The Center argues that the ultrasound requirement violates the First Amendment rights of both the doctor and the patient by forcing physicians to deliver politically-motivated communications to women regardless of the woman’s wishes.  The Center also argues that the law discriminates against women by subjecting them to paternalistic “protections” not imposed on men.  In addition, the Center argues that the sonogram requirements violate basic principles of medical ethics and serve no medical purpose.

The issue that I find intriguing is the First Amendment claim. Does the Legislature have the power to invade the doctor-patient relationship to the point that it can mandate speech? Obviously, doctors have a duty to fully inform patients about health risks, but requiring doctors to describe images to a patient that does not wish to see them is a different matter.

Judge Sparks said that he would reach a decision by October 1.

Tagged: Center for Reproductive Rights, Judge Sam Sparks, sonogram bill