| A little more than a week has passed since a federal court ruling here in Austin temporarily gutted the sonogram bill passed by the Texas legislature this spring. So, what happened? What does it mean? What happens now?
A BRIEF HISTORY
On June 13 of this year, Metropolitan Ob-Gyn, P.A., a provider of abortion services via Reproductive Services of San Antonio, and Dr. Alan Braid, the owner and medical director of Reproductive Services, filed suit in federal district court in Austin to strike down the recent amendments to the Woman's Right to Know Act ("WRKA") passed by the Texas legislature this last session as Texas House Bill No. 15 (the "Act").
Styled Texas Medical Providers Performing Abortion Services, et al. v. David Lakey, M.D., et al., (a.k.a. the "Sonogram Lawsuit"), the lawsuit seeks a judgment declaring that the Act is unconstitutional and unenforceable in whole and/or in part, and an order stopping the named Defendants from enforcing the Act in whole and/or in part on the grounds that the language of the Act is vague, violates First Amendment free speech rights, and violates the Equal Protection Clause of the U.S. Constitution.
The named plaintiffs sought class certification to represent "all Texas medical providers performing abortions, and their patients." They named as defendants David Lakey, M.D., Commissioner of the Texas Department of State Health Services; Mari Robinson, Executive Director of the Texas Medical Board; and David Escamilla, County Attorney for Travis County. All three are responsible for enforcement of the Act or disciplinary procedures stemming from violations under the Act; all were sued in their official capacities. Escamilla was also sued as a class representative of all county and district attorneys in Texas with authority to prosecute doctors for misdemeanors under the Act.
WHAT DID THE ORDER DO?
The Act was supposed to go into effect on September 1, with compliance from doctors required by October 1. On June 30, the plaintiffs moved for a preliminary injunction to block this. In a case where there is the threat of immediate and irreparable harm, and the case will not be resolved for some time until after that harm has likely occurred, a preliminary injunction preserves the status quo. It can order parties to continue doing something or prevent them from commencing something. In granting or denying a preliminary injunction, a court may consider the harm to the public welfare as well as the harm to the parties to the lawsuit. As Judge Sparks stated in his opinion:
"A preliminary injunction is only appropriate if Plaintiffs demonstrate: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted; and (4) that the grant of an injunction will not disserve the public interest. Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)."
Judge Sparks granted the preliminary injunction, striking down the most onerous provisions of the Act - 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 addition to intrusive disclosure requirements for women who were already victims of violent crimes.
His order also granted certification of both the plaintiffs' class and the defendants' class - certifications which defendants had protested - and denied the defendants' motion to dismiss the lawsuit.
WHAT DID THE OPINION SAY?
Judge Sparks granted the preliminary injunction on the basis of unconstitutional vagueness in some - but not all - of the provisions to which plaintiffs objected, as well as on the basis of compelled speech requirements which violate the First Amendment. He refused to grant the injunction on the basis of equal protection and claims of patients being subjected to unwanted speech.
Equal Protection
The plaintiffs had argued that the distinction between abortion providers and other medical providers violated the equal protection clause of the constitution. Applying rational basis review, Sparks quickly voided this argument. In constitutional matters, rational basis review is the most permissive of legislative reviews; if the legislative classification bears a rational relationship to a legitimate government purpose, it will clear that lowest of hurdles and pass constitutional muster.
Arguing against the plaintiffs' equal protection claim, defendants relied on Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). Decided in 1992 by the U.S. Supreme Court, Casey is the current standard for abortion cases, featuring a wide-ranging discussion of abortion rights and states' ability to regulate them. Specifically, Casey states that "the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child." 505 U.S. at 846. It was not much of a stretch to find that the Act was rationally related to the state's interest, and bound by Casey regarding legitimate interests, Sparks ruled against the plaintiffs' equal protection claim.
Vagueness
Plaintiffs fared somewhat better in their claims that the language of the Act was unconstitutionally vague. Laws that are too vague will be deemed unconstitutional. As the opinion noted, this occurs when the law "fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits," and if it "authorizes or even encourages arbitrary and discriminatory enforcement." To restate, laws that let you know how you can be prosecuted or lose your medical license stand a better chance of being constitutional than those which don't.
Of the ten areas of the Act cited by the plaintiffs as too vague, the court found only three to be unconstitutionally vague: 1) provisions concerning the physician who is to perform the abortion, especially in cases of multi-physician procedures and unplanned physician substitutions; 2) provisions about furnishing additional materials if a woman opts not to have an abortion; and 3) the apparent conflict between Sections 171.012(a)(4) and 171.0122 of the Act (going to physicians' duties and patients' options and creating ambiguity as to when the Act would impose liability on either).
Unwanted Speech and Compelled Speech
Plaintiffs encountered similar difficulties arguing that the Act subjected women to unwanted speech under the First and Fourteenth Amendments. The court acknowledged that people do have an interest (not a right) to be left alone, but distinguished the precedent on which the plaintiffs relied. Rather than insulating women from speech mandated by the state, the precedent cited by plaintiffs protected the state's authority to pass laws that shield citizens by restricting the scope of unwanted speech by other citizens.
Plaintiffs' First Amendment claims did find traction, however, in the realm of compelled speech. Applying strict scrutiny, Judge Sparks held that the Act could not compel doctors to speak. In deciding whether legislation passes constitutional muster, strict scrutiny is the most rigid test. The claimed governmental interest must be a compelling governmental interest, and the legislation designed to achieve it must be narrowly tailored to serve that interest.
As to the First Amendment claim, the defendants' continued reliance on Casey to block it was unsuccessful. The court gave three reasons for this: 1) Casey concerned a woman's Fourteenth Amendment due process right to an abortion, where the current case involved First Amendment rights; 2) Casey does not characterize the government's interest in potential life as compelling, as required by strict scrutiny; and 3) the Texas requirements under the WRKA were already more burdensome than the requirements under the Pennsylvania law under Casey, and the amendments in the Act were even more so, thereby making Casey even less applicable than it already may have been.
WHAT HAPPENS NOW?
There are two answers to this - one concerning the order or timeline of events in the case, and one concerning the speculation as to the ultimate result.
Immediately after the injunction issued, Defendants Lakey and Robinson filed an interlocutory appeal to the Fifth Circuit Court of Appeals. Normally, an appeal is proper only after all of the issues in a lawsuit have been finally determined by the trial court. However, there are some exceptions. One of those exceptions is the case where a trial court issues a preliminary injunction. In that instance, the aggrieved party can file an interlocutory appeal to seek relief from the injunction, as was done here.
Appeals, like the trials they review, can also take some time, and this case is no different. Since the issue is politically charged, the Fifth Circuit can choose to be cognizant and responsive to those political concerns and expedite the appeal. However, this is a matter left entirely to the discretion of the appeals court; it may simply run the appeal on a normal, non-expedited schedule. If it decides to fast track the case, the injunction could be upheld for the duration of the lawsuit at the trial level in the federal court here in Austin. In that case, the burdensome parts of the law which caused most concern for advocates of reproductive rights will remain on hold while the case proceeds through the district court.
Alternatively, the appeals court could strike down all or part of the preliminary injunction. That would result in the Act going into effect while the lawsuit proceeds through federal court. If the federal court ultimately issued a permanent injunction, then the law would not be enforceable. Under this scenario, there would be a window of women and medical providers who were subject to the harsh provisions of an Act that was later deemed unconstitutional. If the district court ultimately found all or part of the Act to be constitutional, then this recent preliminary injunction would have served as only a brief respite for patients and doctors alike.
If, however, the Fifth Circuit does not accelerate the appeal, then depending on which court reaches a decision on the merits first - the district court or the appeals court - then any of the above scenarios could play out, or the need for a decision on the interlocutory appeal could be mooted by a final judgment on the merits by the lower, district court. Doubtless, whichever party does not prevail on the final judgment and permanent injunction will file an appeal, and the Fifth Circuit will see this case at one stage or another.
Regardless of the progress at the appeals level, however, it appears that Judge Sparks has no intent of holding up his docket. On September 1, he ordered that parties shall have 60 days to file motions for summary judgment, and then 30 days thereafter to file responses. The lawsuit is going forward.
So, what will happen once this lawsuit goes forward? Better to examine the factors in play than to actually handicap.
First, a preliminary injunction is temporary relief. A permanent injunction might never issue, or the appeals court could reverse the injunction granted by the district court. However, proponents of reproductive rights can be encouraged by the fact that the preliminary injunction was granted at all. For a court to grant a preliminary injunction, there has to be a sufficient showing of ultimate success on the merits. Additionally, the court must perceive a harm of enough magnitude. It is not unreasonable to believe that the fact of a preliminary injunction telegraphs both its view of the harm posed by the Act, as well as a sanguine outlook for the plaintiffs' case.
Second, Casey was an important precedential hook on which the Texas legislature and the defendants in this case hung their proverbial hats. As the court here noted, Casey is distinguishable in part by the type of legal issues at work, and also by the difference in the respective statutes. The Texas WRKA already imposed more requirements than the Pennsylvania law, which made defending the statute under Casey sufficiently difficult for the defendants.
However, the amendments to the WRKA - set out in the Act - were drastically more burdensome, and imposed much greater penalties for violations of the Act. More requirements and greater penalties, therefore, arguably distance the Texas legislation even further from the protections of Casey. In fact, where the question of the constitutionality of various provisions challenged for vagueness was a close one, the court erred on the side of striking down the provisions because of the draconian penalties attached to violations. For these reasons, the Texas legislature may become a victim of its own overreaching.
Third, even where the court upheld provisions of the Act, it did not fail to comment on the law. Even as he ruled against the plaintiffs' equal protection claims, Judge Sparks noted:
"[I]f the Texas Legislature wishes to prioritize an ideological agenda over the health and safety of women, the Equal Protection Clause does not prevent it from doing so under these circumstances."
Similarly, in a footnote to that paragraph, he commented:
"It is ironic that many of the same people who zealously defend the state's righteous duty to become intimately involved in a woman's decision to get an abortion are also positively scandalized at the government's gross overreaching in the area of health care."
Fourth, in granting certification of the defendants' class, the court opened itself to criticism from the appeals court. In its opinion, the court certified the defendants' class on the grounds of the juridical link doctrine, which it introduced sua sponte, rather than accepted from the plaintiffs' arguments. Not only did the court introduce the doctrine sua sponte, it was employing a doctrine that has not been adopted by the Fifth Circuit, but only acknowledged by the appeals court as a tool employed by the Ninth Circuit Court of Appeals (think California).
Despite examining some of the factors and unpacking some of the clues, however, speculating about the outcome of this lawsuit is just that - speculating. The litigation will continue on the federal court's calendar, and for now, bystanders will simply have to wait and see. |
