June 17, 2015 — Lawyers who represented Texas abortion providers in a lawsuit against a 2011 state ultrasound requirement (HB 15) are considering the next course of action after the Supreme Court this week declined to reconsider a lower federal court ruling that struck down a similar North Carolina measure, the Texas Tribune reports (Ura, Texas Tribune, 6/15).
The Texas law requires doctors to make an ultrasound available for viewing by the woman; describing what the ultrasound shows, including the size of the fetus and any internal organs; and making available audio of the fetus' heartbeat, if detectable.
The Center for Reproductive Rights challenged the law. In January 2012, a three-judge panel of the U.S. 5th Circuit Court of Appeals lifted a lower court's injunction against the law (Women's Health Policy Report, 1/11/12).
Meanwhile, in a separate case, the Supreme Court on Monday refused to hear an appeal from North Carolina that sought to instate a blocked component of a state law (SL 2011-405) that would require physicians to perform ultrasounds on a woman before an abortion, even if the women objected.
A three-judge panel of the 4th U.S. Circuit Court of Appeals last year unanimously upheld a lower court's ruling that struck down the narrated ultrasound requirement, stating that the provision is an unconstitutional violation of physicians' free-speech rights (Women's Health Policy Report, 6/15).
CRR Mulls Next Steps
Julie Rikelman -- litigation director at CRR, which filed suit against both the North Carolina and Texas laws -- said, "We are in the process of evaluating our legal options in light of [the] order out of the Supreme Court which allowed strong lower court rulings to stand."
However, Cynthia Meyer, spokesperson for Texas Attorney General Ken Paxton (R), said, "A Supreme Court decision to not hear a case has no precedential effect, so it shouldn't have any implications for Texas." Nonetheless, according to the Tribune, the 4th Circuit's ruling to strike down the North Carolina requirement and the 5th Circuit's ruling to uphold the Texas measure have created a split among the federal circuits, which could make the Supreme Court more likely to consider the issue.
Lyle Denniston, of SCOTUSblog, noted that the Texas providers have missed the deadline to appeal the 5th Circuit Court's decision. However, he said they could ask the 5th Circuit to reconsider the case "by arguing that the Texas law is as vulnerable to challenge as the North Carolina law was." Still, he noted that convincing the court to reconsider could prove challenging (Texas Tribune, 6/15).