Judge Issues Temporary Stay in Sonogram Lawsuit

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“The Court is bound to respect legislative intent, but not at the expense of the Constitution.”

Yesterday, Federal Judge Sam Sparks ruled on the sonogram lawsuit – if only temporarily. This is good news for women's reproductive rights, but the issue is far from settled. The lawsuit will now continue toward trial.

Filed June 13 of this year, Texas Medical Providers Performing Abortion Services, et al. v. David Lakey, M.D., et al., (a.k.a. the “Sonogram Lawsuit”) has already produced an injunction and garnered media attention from around the world. The Sonogram Lawsuit seeks to stop the implementation of Texas House Bill No. 15 (“the Act”) which amended the Texas “Woman's Right to Know Act” (“WRKA”).  Judge Sam Sparks of federal district court in Austin granted the plaintiffs partial victory today, stopping key provisions of the law from going into effect – for now.

The Act requires, among other things – and with certain exceptions, that a woman seeking an abortion undergo an ultrasound (or sonogram), view the fetal image produced by the sonogram, listen to auscultation of the fetal heart, and listen to a detailed description by the doctor of the fetal image. The Act also requires that the doctor performing the abortion procedure must also be the doctor performing the ultrasound.  Excepting certain geographic restrictions, the Act requires a 24-hour waiting period from the time of the ultrasound to the time of the abortion procedure.  

The Act also ramps up penalties for noncompliance with the law.  As the lawsuit stated, noncompliance results in “strict liability for violation of any provision of the WKRA, regardless of fault or mental state.” This strict liability would be applied to prosecution of the criminal penalties already imposed by the WKRA. It also calls for disciplinary action by the Texas Medical Board against any doctor who violates the WKRA, as amended. The Act was set to go into effect September 1, i.e. tomorrow.  

The Sonogram Lawsuit was filed on June 13 by various Texas medical providers and in conjunction with the Center for Reproductive Rights. The lawsuit seeks a declaratory judgment that the Act is unconstitutional and unenforceable in whole and/or in part, as well as injunctive relief restraining the named Defendants from enforcing the Act in whole and/or in part, on the grounds that the Act is vague, violates First Amendment free speech rights, and violates the Equal Protection Clause on three separate bases.

Judge Sparks' ruling touched on and curtailed several key aspects of the legislation including, but not limited to the legislative intent that had been publicized in previous weeks. In fact, it was the apparent legislative intent which he took to task near the end of his 55-page opinion, singling out certain disclosure and certification mandates, stating:

“Given the nature of the certification and the Act's retention requirements, it is difficult to avoid the troubling conclusion the Texas Legislature either wants to permanently brand women who choose to get abortions, or views these certifications as potential evidence to be used against physicians and women.”

In his ruling, Judge Sparks sharply limited the sanctions against physicians available to law enforcement and the Texas Medical Board and severely restricted the conditions required of women seeking abortions. Specifically, Judge Sparks prohibited any enforcement of the provisions requiring the display of the ultrasound, the detailed description of the fetal image, and the audible heart auscultation of the fetus.

In the final pronouncement before the actual Order, Judge Sparks offered this:

“The Court is bound to respect legislative intent, but not at the expense of the Constitution.”

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