The sonogram lawsuit hearing
Thu July 7, 2011 10:57 am

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.

 

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