Enforcement of Texas Ultrasound Law in Limbo After Appeals Court Ruling

January 12, 2012 — Although a federal appeals court ruled on Tuesday that Texas may begin enforcing a new antiabortion-rights law, it remains unclear when the state will do so or how the law's opponents will react, the AP/Lubbock Avalanche-Journal reports. The law requires doctors to perform an ultrasound, describe the fetus and give the woman the option to hear the fetal heartbeat before providing abortion care (Tomlinson, AP/Lubbock Avalanche-Journal, 1/12).

In Tuesday's ruling, a three-judge panel of the 5th U.S. Circuit Court of Appeals rejected a decision by U.S. District Court Judge Sam Sparks to issue an injunction temporarily blocking the law's main provisions. 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, 1/11).

Chief Judge Edith Jones will not issue a mandate ending the injunction for at least 14 days, giving the Center for Reproductive Rights, which brought the case, time to request a rehearing before the full 5th Circuit.

In order to persuade the full 5th Circuit to rehear the case, CRR will have to convince a majority of the judges that the three-judge decision deals with an issue "of exceptional public importance or [was] an opinion that directly conflicts with prior Supreme Court, 5th Circuit or state law precedent." According to court documents, only about 1% of cases are reheard this way. The AP/Avalanche-Journal notes that the 5th Circuit is considered the nation's most conservative appeals court.

CRR President Nancy Northup said the group is considering its options. In the event that CRR wins a rehearing, the 5th Circuit panel's ruling would be put aside. CRR also could appeal the ruling to the U.S. Supreme Court and request that the law not be enforced pending the high court's decision. If a rehearing does not occur, the court will issue a legal mandate eight days after the 14-day appeal period to make the 5th Circuit ruling binding at the end of January.

Sparks has scheduled oral arguments for Jan. 20. Should Sparks follow Jones' the 5th Circuit’s judgment logic, CRR would face a tough trial. The law would become effective if he issued a ruling agreeing with the 5th Circuit panel Jones. However, if Sparks disagrees and finds the law unconstitutional before Jan. 31, then it will remain blocked.

Both sides of the case are poised to appeal Sparks' ruling if he decides against them, which would send it back to Jones and the 5th Circuit. The court could allow the state to enforce the law during that process (AP/Lubbock Avalanche-Journal, 1/12).