Texas Moves To Implement Ultrasound Law After Judge Defers to Appeals Court's Decision

February 7, 2012 — U.S. District Judge Sam Sparks on Monday said he is bound by an appeals court's decision ordering enforcement of a Texas law that requires doctors to perform an ultrasound, describe the fetus and give the woman the option of hearing the fetal heartbeat before providing an abortion, Reuters reports. The ruling clears the way for the Texas Department of Health Services to begin enforcing the law (Baynes, Reuters, 2/7).

The law originally was set to take effect Oct. 1, 2011, but Sparks issued a temporary injunction to halt enforcement (Scharrer, Houston Chronicle, 2/7). In January, a three-judge panel on the 5th Circuit Court of Appeals rejected Sparks' decision and ruled that the state could begin enforcing the law. The panel concluded that the law requires physicians to provide "truthful, non-misleading information," which the judges said does not violate the right to free speech. The panel sent the case back to Sparks with instructions to proceed under its guidelines (Women's Health Policy Report, 1/12).

In his latest ruling, Sparks made it clear that he disagrees with the appeals court. He said that the law is constitutionally vague and violates physicians' First Amendment rights. "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 (Houston Chronicle, 2/7).

"There can be little doubt (the law) is an attempt to discourage women from exercising their constitutional rights by making it more difficult for caring and competent physicians to perform abortions," Sparks added. "It appears (the appeals court) has effectively eviscerated the protections of the First Amendment in the abortion context," he continued (AP/Washington Post, 2/6).

Sparks also criticized the law's penalties for violators. Doctors who do not comply with the new law could lose their medical licenses, be charged with a misdemeanor and face fines of up to $10,000 (Houston Chronicle, 2/7).

Next Steps

Carrie Williams, a spokesperson for the Texas Department of Health Services, said the state is moving forward on full enforcement of the law. The agency on Monday posted guidance letters and information for doctors and patients on its website. Officials will begin checking that abortion providers are following the requirements during clinic inspections, Williams said (AP/Washington Post, 2/6).

Officials with the Center of Reproductive Rights, which brought the case, said they will continue to pursue an appeal before the full 5th Circuit. Nancy Northup, president of CRR, said, "It is a terrible injustice that Judge Sparks could not rule in favor of protecting the constitutional rights of Texas doctors because of the 5th Circuit panel's decision" (Reuters, 2/7). She added, "We urge the full 5th Circuit to consider Judge Sparks' sound legal analysis when reviewing our request for a new hearing" (Houston Chronicle, 2/7).

Joe Pojman, executive director of Texas Alliance for Life, called the ruling "a big victory" for abortion-rights opponents. He said, "The state cannot ban abortion, but at least we can give women all the information they need to make an informed decision" (AP/Washington Post, 2/6).