Judge can't stop sonogram law
By Gary Scharrer, Houston Chronicle
Source: http://www.chron.com/news/local_news/article/Judge-can-t-stop-sonogram-law-3078815.php
AUSTIN — U.S. District Judge Sam Sparks said in a ruling Monday that he can't stop a new sonogram law from taking effect and pointedly suggested that three appellate court judges who overruled him last month had misapplied an earlier federal court decision involving abortion.
The state of Texas will begin enforcing the law Tuesday, according to a spokeswoman for the Texas Health Services Commission.
“Our enforcement activities can begin now that the materials and guidance are in place. We'll be providing technical assistance along the way, but facilities need to follow the law, and we'll be checking up on that during our facility inspections,” said Carrie Williams, an agency spokeswoman. “We understand that this affects the facilities and the women who are going there for services, and we want to make sure everyone is well-informed about this”
The Republican-controlled Legislature approved a sonogram bill last year that requires physicians to provide a sonogram before performing an abortion. A woman seeking an abortion has options to view the sonogram images and to hear the fetal heartbeat. She also is required to hear the medical explanation of the sonogram at least 24 hours before the procedure.
Sparks indicated in his ruling he believes the law violates the First Amendment rights of physicians and is constitutionally vague, but noted three judges from the 5th Circuit Court of Appeals had directed his ruling when they overturned Sparks' temporary injunction that kept the law from taking effect last Oct. 1.
In his ruling, Sparks complained that the appellate panel's opinion could require a physician's presentation “consisting of graphic images of aborted fetuses and heartfelt testimonials about the horrors of abortion ... under the rubric of reasonable regulation of medical practice.”
“The concept that the government may make puppets out of doctors, provided it does not step on their patients' rights, is not one this Court believes is consistent with the Constitution, in the abortion context or otherwise,” Sparks wrote.
The judge also complained that doctors should not have to risk a $10,000 fine, a criminal charge and losing their medical license. Sparks spent 30 years defending doctors and hospitals while practicing law in El Paso before President George H.W. Bush appointed him to the federal court.
Sen. Dan Patrick, R-Houston, believes the ruling is the last word and doubts the U.S. Supreme Court will take it up — if asked.
Patrick, who authored the sonogram bill in three consecutive legislative sessions, estimated HB 15 would save 15,000 lives annually in Texas if it stops one out of every five abortions.
“There's no other piece of legislation anywhere else in the country that has that kind of impact,” Patrick said Monday. “I don't take credit for it. It's God's hands.”
Patrick credited three Democratic colleagues — Sen. Judith Zaffirini, D-Laredo, Sen. Carlos Uresti, D-San Antonio, and Sen. Eddie Lucio, D-Brownsville — for support he needed for the bill's passage.
In his ruling Sparks wrote that Edith Jones, chief justice of the 5th Circuit Court of Appeals, and two of her colleagues “seem to display an almost shocking lack of concern for the privacy and well-being of women considering abortions” after the panel suggested that doctors send material if a woman fails to appear for her abortion.
Critics contend material such as that could jeopardize a woman's life in the case of domestic abuse when a woman does not want her husband to learn about an abortion.
Sparks said the appellate panel dismissed the concern as trivial.
“And to say the potential for harm to women is nonexistent, is profoundly disturbing,” Sparks said in his ruling. “Requiring doctors to take actions they believe are likely to cause harm to their patients is completely at odds with the most basic tenets of medical ethics.”
Supporters of the sonogram law believe it will help reduce abortions in Texas, which number nearly 80,000 per year.
“There can be little doubt that (the law) is an attempt by the Texas Legislature to discourage women from exercising their constitutional rights by making it more difficult for caring and competent physicians to perform abortions,” Sparks wrote in his decision.
“It appears the (three judge appellate court panel) has effectively eviscerated the protections of the First Amendment in the abortion context,” and “in no other medical context does the government go so far in telling doctors what they must, and must not, do,” Sparks said in the ruling.
The Center for Reproductive Rights filed a lawsuit last summer against the law.
“It is a terrible injustice that Judge Sparks could not rule in favor of protecting the constitutional rights of Texas doctors because of the Fifth Circuit panel's decision,” said Nancy Northup, the center's president and CEO. “We urge the full Fifth Circuit to consider Judge Sparks' sound legal analysis when reviewing our request for a new hearing.”