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Sonogram Lawsuit Looks Grim

by: Katherine Haenschen

Thu Feb 02, 2012 at 01:17 PM CST

Thanks to a ruling from the 5th Circuit and a request from Greg Abbot to expedite enforcement, Texas' wildly invasive sonogram law is going into effect. Women seeking abortions will be subject to a mandatory ultrasound and forced to look at the sonogram image, and their doctor will be required to read a bunch of medically unnecessary information about fetal development or risk losing their medical license. For women who are less than 10 weeks pregnant, that sonogram will be conducted with a trans-vaginal probe, seen at right.

The law took effect sooner than anticipated, since Attorney General Greg Abbott got permission for immediate enforcement after 5th Circuit Judge Edith Jones struck down Federal Judge Sam Sparks' temporary restraining order on the law. Usually there's a three-week waiting period before laws are enforced. Now the Department of Health Services is writing rules for enforcement of the new law.

Here's a run-down of what happened in the litigation and where anti-probers can go from here.

June 13, 2011: The initial lawsuit against the sonogram bill is filed in federal court, with plaintiffs seeking to prevent the law from going into effect on September 1, 2011. The lawsuit seeks a judgment that the mandatory sonogram law is unconstitutional and unenforceable in whole and/or in part.

August 30, 2011: Judge Sam Sparks issues a temporary restraining order, or TRO, blocking enforcement. Specifically, Sparks' ruling prohibits 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.

January 5, 2012: AG Greg Abbott appeals Sparks' injunction at the 5th Circuit court. The anti-sonogram side continued to argue that the sonograms and compelled speech by the doctors are not medically necessary, and that the State of Texas was trying to insert ideological speech into the doctor-patient relationship.

January 10, 2012: Chief Judge Edith Jones, noted anti-abortion zealot, reversed Spark's TRO and stated that there's precedent for the new Texas law. That gave pause to opponents of the law, since any appeal of Sparks' final decision would have to go back through the 5th Circuit.

January 13, 2012: Abbott gets permission to enforce the sonogram law immediately, rather than wait the usual 3 weeks for the provision to take effect. The 5th Circuit granted his request, thus denying the anti-sonogram side the opportunity to appeal Jones' decision to reverse Sparks' injunction. The Texas Department of State Health Services was instructed to issue rules for compliance with the law, as well as prosecute doctors who do not obey it.

January 20, 2012: At a hearing on the initial lawsuit, Judge Sparks says his "hands are tied" by the 5th Circuit's reversal of his original TRO. Essentially, if Sparks rules for the plaintiffs, Jones is likely to reverse him when the State appeals his decision.

Now What? The best chance for opponents of the invasive sonogram law is for Sparks to rule against the law on constitutional grounds, and then have the ensuing appeal by the state take place en banc, or to the entire 5th Circuit, not just a three-judge panel including the dreaded anti-choice Judge Jones. A majority of the 17 judges on the 5th Circuit would have to agree to rehear it, and then could potentially reverse Judge Jones. Not all 17 would have to hear the case. Or at least that's my understanding. Other Circuit courts have ruled against similar laws, so there's a solid chance that a wider group of judges ruling on our sonogram law at the 5th Circuit might produce a different outcome.

Conceivably if Sparks does rule, and then the losing side appeals to the 5th Circuit, the losing side there can appeal to the Supreme Court. It's not clear however if the SCOTUS would take up the case, and given the current ideological swing of the court to the right thanks to George W. Bush's appointments, how the anti-sonogram side would fare.

So that's where we are. We'll keep you updated on this issue as it continues.  


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