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Sonogram Lawsuit

Virginia and Iowa Republicans Copy Texas's "State-Sanctioned Rape" Law

by: Katherine Haenschen

Fri Feb 17, 2012 at 10:20 AM CST

Not to be outdone by the troglodytes in the Texas legislature, Republicans in the Virginia and Iowa statehouses are pushing for women to be forced to receive a mandatory trans-vaginal sonogram before getting an abortion. It's no surprise to see the law being repeated in other states, given Republicans' national war on women. Furthermore, since efforts by the Center for Reproductive Rights to beat back the sonogram lawsuit in the courts have recently failed, anti-choice activists likely are trying to strike while the unwanted-mandatory-probing of women is hot.

Over at RH Reality Check, writer Andy Kopsa accurately terms the bills "state-sanctioned rape," since they force an unwanted object into the body of a woman even if she won't consent to the procedure. Kopsa asked the Virginia AG if the bill overturns the state's anti-rape statute, but has yet to receive a response. Arguably it's the State who fills the role of the rapist, since many doctors themselves do not want to perform the unnecessary procedure. The Virginia law has already passed the lower chamber and is headed for the Republican-controlled Senate, where it is also likely to pass. Kopsa reports that thankfully the Iowa State Senate is Democratic, and will likely kill the Iowa version of the bill, along with other anti-choice and anti-woman legislation up for consideration.  

Meanwhile, as we previously reported here at BOR, Federal Judge Sam Sparks dismissed the lawsuit against the State's sonogram law, primarily due to a pending reversal from the 5th Circuit Court, where the rabidly anti-abortion Chief Judge Edith Jones already overturned Sparks' temporary restraining order blocking enforcement of the sonogram law. Sparks essentially said that while he could still side against the sonogram law on constitutional grounds, there was little hope of the plaintiffs prevailing when the State appealed. It goes without saying that conservative, anti-choice judges on our Circuit Courts appointed by Republican presidents are just waiting to uphold these mandatory sonogram laws.

The irony is that sonogram laws have not been proven to actually reduce the rate of abortion. The main challenges they present are economic and procedural. The 24-hour waiting period associated with the sonogram can cause logistical hurdles for women that must travel long distances or take days off from work in order to get to an abortion provider. In Texas, if women travel over 100 miles to get an abortion they can waive the 24 hour waiting period, but must still wait 2 hours, I suppose to "think it over." Most infuriatingly, women also must pony up the extra money for a sonogram they don't want and don't even have to look at once it's done. Abortions are already expensive, especially for low-income women. This just makes the financial hurdle even bigger.

At its core, the sonogram law is about embarrassing and shaming women for exercising their right to choose. It's about humiliating women and forcing them to submit to an unwanted vaginal probing before going through with a medical procedure that they've already thought about a great deal. These laws are fixated on making women feel bad about their choice, and allowing the state to literally and physically violate them for exercising their rights.

Republicans will never stop their insane intrusions into women's personal lives or women's bodies. Now they're trying to allow employers to restrict their employees' access to birth control on "moral grounds." Where does it end? The Republicans have literally forced their way into the vaginas of women in Texas via their mandatory sonograms, and soon those of women in Virginia as well. Even as their efforts to block birth control coverage, mandate sonograms, and chip away at every reproductive freedom women enjoy cause them to nose-dive in the polls, it seems that they just won't stop. Women literally have no business voting for candidates from the Republican party -- their sole priority seems to be taking away our reproductive rights and basic access to birth control.

The only way to keep Republicans out of our lady-business is to keep them out of office.

More on the Texas Sonogram Law on Burnt Orange Report:

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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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Top Medical Association Doctors Oppose Sonogram Law, Cuts to Family Planning

by: Katherine Haenschen

Tue Jan 31, 2012 at 09:59 AM CST

The Texas Tribune ran an interesting interview with the doctors who head the American Medical Association and Texas Medical Association today. Topics included Medicaid and Medicare reimbursement rates, the American Care Act and its individual mandate, and the general politicization of healthcare.

The doctors interviewed were American Medical Association President Peter Carmel, a New Jersey-based pediatric neurosurgeon, and Texas Medical Association President Bruce Malone, an Austin orthopedic surgeon. There was an interesting -- and very insightful nugget in there about the Republican Party's war on women's health. Carmel directly called out the sonogram law as a "needless, dangerous interference" in medicine, and both decried cuts to family planning and attacks on Planned Parenthood. Malone went so far as to call it "stupid."

Read for yourself, formatting/emphasis mine:

TT: Where do you come down on Texas' abortion sonogram law, which requires a sonogram at least 24 hours ahead of an abortion and mandates that a doctor play the fetal heartbeat aloud and show the woman the image of the fetus?

Carmel: It is a needless, dangerous interference with the practice of medicine by politicians. And as physicians, we have to oppose all interference that we possibly can by politicians in the practice of medicine. There are all sorts of rules all over the country, with state legislatures trying to dictate what doctors do. In the state of Florida, it is illegal for a doctor to ask the family of a child whether there are guns in the home. You can ask about storage of chemicals, about fire alarms, fire escapes, open windows, how the windows are sealed. You're allowed to ask all those questions, but you cannot ask whether there are firearms in the home. Firearms are a major cause of childhood mortality and injury. It's so extreme as to be ludicrous. The important principle is, the government shouldn't interfere with the doctor-patient relationship. The government shouldn't practice medicine.

TT: And what about Texas lawmakers' efforts to slash spending on family planning? Now they're threatening not to participate in the Medicaid Women's Health Program if they can't exclude Planned Parenthood.

Malone: That would be a really stupid thing to do. Planned Parenthood does not do abortions in the state of Texas with state funds. So this is a very stupid political thing. It's not like the state of Texas has another safety net for these women for medical care. The Texas Medical Association doesn't want to get into the issue of whether a patient wants an elective abortion. That's not what we're dealing with. We're talking about well woman services, pap smears and breast exams, things that make public health sense. And we don't want to see those women who are vulnerable denied essential medical services because someone wants to debate an ethics issue. That's their right to debate that. That's fine, but these are essential medical services.

Carmel: What it sets up is two classes of patients. If you've got rocks, you've got the ability, you've got access to contraception, to women's health, to all of these things. If you're poor, we're going to deny you access to that kind of health. That's first of all not tolerable for medicine, and it can't be tolerable for Americans. No American would say, "Yes, the poor should get inferior treatment."

Aww, Dr. Carmel's clearly spent too long in a Blue State. Actually, down here the Republicans do want to deny poor people treatment. We've seen it session after session after session.

It's important to note that these leaders in the field of medicine disagree with what the Republican legislature is doing -- making women's health an ideological issue, rather than a medical one. Slashing funds to women's health and family planning services hurts all of us.

I'm glad that these distinguished doctors realize this. It's too bad our Republican legislators don't.  

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Austin City Council Unanimously Passes Revised Crisis Pregnancy Center Notification Ordinance

by: Katherine Haenschen

Thu Jan 26, 2012 at 05:31 PM CST

"We're not going to lose the battle and lose the war and have to pay for it."

With those words from Mayor Pro Tem Sheryl Cole, the Austin City Council voted unanimously today to repeal our old Crisis Pregnancy Center ordinance, and then unanimously passed a revised ordinance intended to survive scrutiny in ongoing legal battles.

Back in 2010, Council unanimously passed an ordinance requiring Crisis Pregnancy Centers to post a sign on their doors stating that the businesses don't provide abortions, refer for abortions, or provide FDA-licensed birth control, and that there is no licensed medical professional on site. Since the passing of the 2010 ordinance, other cities' CPC regulation efforts have come under increased scrutiny, and many have been struck down. Here in Austin, a group of plaintiffs that operate the centers and generally oppose abortions sued the City, claiming that the ordinance -- which simply requires CPCs to state what services they do not provide -- violated their First Amendment rights.

Today, Council considered a revised ordinance, sponsored by Council Members Bill Spelman and Mike Martinez, that removed language from the original that was not likely to stand muster in the courts. (Read a preview of this issue here.) Council repealed the old ordinance--we cannot have two contradictory ordinances on the books--and then considered a new ordinance. The new ordinance requires a sign that doesn't make reference to abortions or birth control. It is strictly a disclosure that there is no licensed healthcare professional on site. That's what was determined to be most likely to stand up in court.  

The absurdity of the situation is that CPC's don't have to be licensed. Taxi cabs, nail salons, food trailers, pedi-cabbers, even fishermen have to be licensed, but any anti-choice group can set up shop to intimidate and misinform women into carrying an unwanted pregnancy to term. Many of them also receive tremendous amounts of funding from the state. That's right -- our tax dollars are being used to help these organizations intimidate women and provide incorrect information about abortion, pregnancy, and women's health.

Speakers were vastly in favor of the new ordinance requiring CPC signage, noting time and again that it's about informing women about what services the business provides. Genevieve van Cleve, Deputy Political Director of Annie's List, thanked the Council for supporting women, and reminded all present of the Texas Legislature's unrelenting assault on Texas women, children, and families. She emphasized the rights of consumers to know what services businesses provide, stating "not only can the government require truth in advertising for healthcare purposes, the government should do so."  Gen used the nail salon analogy to remind Council that most service providers must live up to a basic level of professionalism to keep operating. Not so for the deliberately misleading CPC's.

Other speakers included a volunteer attorney with Jane's Due Process who counsels pregnant women on their legal options and helps teenagers receive judicial bypass of parental notification laws when needed. She noted the time-sensitive nature of abortion, and that the longer women wait, the more costly or limited the services may be. (This especially true in Texas, where many providers won't perform an abortion after a certain number of weeks -- we're not talking third trimester here, we're talking early- to- mid-second trimester.) CPC's confuse teenagers who want abortions, which can cost them precious time and money.

Speakers against the ordinance were almost all male (of course), and as Martinez pointed out, most don't even live here in Austin. Some claimed that it was a First Amendment issue; others simply seemed to hate abortion. Several tried to intimidate the Council with threats of exorbitant legal fees, which apparently was the main reservation our staunchly pro-choice Council had with the new ordinance. An attorney from the Liberty Institute suggested that if the City loses in the courts, they'll need to pay hundreds of thousands of dollars -- possibly over $1 million -- to the anti-choice groups pursuing the lawsuits.

That's a valid concern -- if indeed our ordinance couldn't stand up in court and we lost, does Austin want to funnel large amounts of taxpayer money into anti-choice coffers? That's hardly in keeping with our community values. However, MPT Cole got to the heart of that issue during questioning of Sara Clark, the attorney for the City in this matter. Cole drove the point that if it looks like Austin won't prevail in the lawsuit, we can immediately repeal the ordinance before we lose in court.

The current ordinance is currently being litigated in Federal court. An appeal of the outcome of this first trial would land on the 5th Circuit Court, home of Chief Judge Edith Jones, the noted anti-abortion zealot who recently overturned Federal Judge Sparks' stay on the sonogram law. (Read more about Jones' extreme anti-choice views here.) The plaintiffs in the CPC case will likely revise their filings to sue the City over this new ordinance. However, speakers today were very confident that our new ordinance was carefully crafted to follow existing legal precedent from other Circuit courts, and has a very strong chance of winning if challenged.

As NARAL lobbyist Blake Rocap pointed out, we're simply asking the CPC's to post information that they themselves state is true -- there are no licensed medical professionals on site. If CPC's already admit what Council wants them to admit on their own front doors, how is that compelled speech? Ironically, the sonogram lawsuit may actually work in our favor here, since Judge Edith Jones doesn't think it's an undue burden for abortion providers to perform a mandatory sonogram and require doctors to read off a fact sheet about fetal development before performing the procedure.

Spelman made a motion that Martinez seconded to pass the revised ordinance on all three readings, which requires a supermajority. Today, that would have been a 5-1 vote, since the Mayor was off the dais on an official trip to London to study economic development in the high-tech sector. Passing on all three readings means it's a done deal -- no need to vote two more times on this issue.

So, good job Council. It's great to see them uphold our community values and provide women with accurate information. And a special thanks to Council Members Spelman and Martinez -- both men, it's worth pointing out, who refused to let this issue drop and pushed this revised ordinance through. It's really great to see two males standing up for women's health, and something we'd all like to see a lot more of. Women's health is an issue that impacts our entire community, because it impacts our mothers, wives, sisters, friends, colleagues, and neighbors.

Hopefully our ordinance stands up in court, and can soon be enforced. If CPC's refuse to post the sign,  citizens can call code compliance and 311. Likely the CPC's would be given a warning, but if they still refused to post the sign, they'd start getting tickets for Class C misdemeanors, punishable by a fine of up to $450.

We will keep you posted as this issue works its way through the courts.  

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Austin City Council Reconsiders Crisis Pregnancy Centers

by: Katherine Haenschen

Wed Jan 25, 2012 at 02:11 PM CST

This week, the Austin City Council will consider amending or repealing an ordinance that requires Crisis Pregnancy Centers to disclose that they don't provide or make referrals for abortion, or provide FDA-approved birth control. While I am very confident that our council members remain staunchly pro-choice -- the ordinance passed unanimously in 2010 -- the question is how Austin's ordinance can survive repeated lawsuits from the right-wing, and what other tools are available to warn women about these insidious anti-choice "resource centers."

Crisis Pregnancy Centers are essentially anti-choice entities that attempt to mislead, intimidate, and coerce young women into keeping their unwanted pregnancies. While many claim to be "clinics," in reality there are no medically licensed staff working at the centers, and many provide no health care services at all. Instead, the focus of these CPC's is to stop women from exercising their right to an abortion, and prevent them from avoiding unplanned pregnancies in the future.

NARAL Texas has more information about these insidious organizations:

CPCs not only fail to address the range of choices available to women; they often attempt to dissuade women from seeking abortion by presenting factually inaccurate and misleading information. Women seeking services are often told abortion leads to breast cancer and psychological distress, or "post-abortion syndrome"--despite no medical evidence backing either claim. Women may also be shown intentionally upsetting images or receive false information about their own pregnancies.

In 2009, the Texas Legislature shifted $4 million in family planning funds to these unlicensed, unregulated centers. CPC's are all over Texas.  Austin has a number of these centers, which claim to "minister" to women with unexpected, unplanned, or unwanted pregnancies. In reality, CPC's don't provide women with a comprehensive list of options, which includes abortion, and they don't provide scientifically accurate information about how women can prevent future unplanned pregnancies.

In 2010, Council Member Bill Spelman sponsored and passed an ordinance requiring CPCs to post signage indicating that they don't provide abortions or FDA-approved birth control. Last fall, several CPC operators sued the City, claiming that the lawsuit violated their First Amendment rights. The CPC plaintiffs -- the Roman Catholic Diocese of Austin, Catholic Charities of Central Texas, the Austin Pregnancy Resource Center, and the South Austin Pregnancy Resource Center -- say that the City's ordinance doesn't place such burdens on other providers. However, as The Austin Chronicle notes, abortion providers are required by the State of Texas to disclose that they provide abortions.

What's so ironic is that CPC's are arguing against compelling speech, yet at the same time anti-choice activists are in favor of compelling unnecessary speech through their beloved sonogram law. In the lawsuit against the CPC's, anti-choice organizations are arguing that compelling speech violates their First Amendment rights, even though the signage is accurate (unlike the information provided by CPC's). In the sonogram law, the State of Texas is arguing that it's all fine and dandy to require doctors to perform mandatory sonograms of women seeking abortions, even though the speech they're compelling is medically unnecessary. Compelling speech is fine for the anti-choice movement when it serves their aim of pressuring and intimidating women into not having abortions. But when the speech actually gives women useful, important information -- Whoa, Nelly!

This week, the Austin City Council is looking for a way to amend the ordinance such that the City can successfully defend the ordinance in court. Meanwhile, the city legal department has a competing agenda item calling for the repeal of the CPC signage ordinance. Ideally, the amended ordinance -- put forward by Council Members Spelman and Martinez -- would remove specific language that has failed in other legal tests, leaving a CPC ordinance that can successfully be defended in court.

City Legal's concern may include the amount of time and money spent defending the CPC ordinance. It raises a valuable question: how much taxpayer dollars should we spend defending ordinances that uphold our community values? Similarly, council could explore whether there are other ways to accomplish the same aim of giving women warning that CPC's do not provide comprehensive services or medically accurate information, nor are they under any obligation to do so.

The right wing and anti-choice organizations have an immense amount of funding available to fight these ordinances and drag every other pro-choice or anti-anti-choice effort through the courts. It's part of their strategy to chip away at abortion rights in America. However, if the ordinance stands, Austinites have the chance to give anti-choice organizations a taste of their own medicine. While the CPC ordinance is in court, it is not being enforced. Should the City prevail and the CPC become an enforceable ordinance, CPC's could be ticketed for failing to comply. It would be a Class C misdemeanor, punishable by a fine of up to $450 in municipal court. Should the City prevail and the CPC's refuse to post their warning signs, an orchestrated effort to call code compliance on them could result in thousands of dollars in fines levied against the centers.

NARAL has a handy one-click way to contact the entire Austin City Council in support of holding CPC's accountable. The anti-choicers are very well organized and will flood Council inboxes with blather against this effort. Make sure our side has its voice heard as well.

I'll have more coverage of the vote tomorrow.

Disclaimer: I'm on the board of NARAL Texas because I am super-duper pro-choice. If you want to support NARAL, we have a fundraiser this week. Click here for more information.  

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