| Texas House Bill No. 15 (the "Act") is back in the news. The Sonogram Lawsuit went before the United States Court of Appeals for the Fifth Circuit yesterday. Representing the Appellants, Commissioner of the Texas Department of State Health Services and the Executive Director of the Texas Medical Board, the Texas Attorney General sought to strike down the preliminary injunction issued by Judge Sam Sparks of U.S. District Court in Austin. That preliminary injunction, issued in August 2011, blocked 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 - from going into effect.
Oral arguments were held yesterday morning at the Fifth Circuit. Arguing for the Appellees was Julie Rikelman of the Center for Reproductive Rights. Appellees' arguments focused on the fact that the provisions at issue were not medically necessary and essentially made physicians agents of the state's ideological speech, rather than medical providers. Rikelman also noted that the provisions were unprecedented, far exceeded provisions found elsewhere, including, inter alia, Mississippi and Pennsylvania, and fundamentally changed the nature of the patient-physician conversation not based on medical needs but based on state ideology.
Importantly, Rikelman argued that the seminal case, Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), did not establish a standard for all compelled speech challenges in the abortion context; instead, it was limited to the facts of that particular case. Further, she noted the difference between what the government can say and what it can force others to say on its behalf, with a chief problem in this case being that the Act forces doctors to be a conduit for a non-medical message.
It is unclear when the Fifth Circuit will rule. However, a hearing on the case at the trial level, is currently set in federal district court in Austin on January 20.
Audio of the oral argument from today can be found here. |
