On Thursday the Roberts Court will decide whether or not to intervene in a case that is widely seen as the first major challenge to abortion rights since the landmark 1992 decision Planned Parenthood v. Casey.
The case, Pruitt v. Nova Health Systems, challenges a December 2012 decision by the Oklahoma Supreme Court that declared the Oklahoma Ultrasound Act, which requires the performance, display, and explanation of a pre-abortion ultrasound, to be facially unconstitutional. Like other mandatory ultrasound laws, Oklahoma’s law, HB 2780, claims to give women who seek abortions the benefit of an “informed decision” and makes the procedure part of the necessary “informed consent” required before a patient can access health care. The specific requirements of HB 2780 mandate physicians perform an ultrasound at least one hour before proceeding with an abortion, display the ultrasound images to the pregnant woman, and also provide a simultaneous medical description of the ultrasound images. This medical description has to include the dimensions of the fetus, the presence of cardiac activity, if any, and the presence of internal organs, if viewable. The physician is then required to obtain from the woman her written certification that the physician complied with HB 2780. The law contains exceptions for the ultrasound requirements if a woman faces an immediate medical emergency in which her life or physical health were in danger because of the pregnancy and specifies that nothing in the law’s requirements may be construed to prevent the woman from averting her eyes from the ultrasound images, meaning the state can’t force her to watch against her will.
As soon as the law was enacted, Nova Health Systems, a non-profit corporation that operates an abortion clinic in Tulsa, Oklahoma, sued in state court, challenging HB 2780 under the Oklahoma constitution. The trial court granted summary judgment to Nova Health Systems and issued a permanent injunction blocking the state from enforcing the law. In issuing the injunction, the trial court reasoned that the law was unconstitutional in part because “it is improperly addressed only to patients, physicians, and sonographers concerning abortions and does not address all patients, physicians, and sonographers concerning other medical care where a general law could clearly be made applicable.”
In a somewhat unusual move, the Oklahoma supreme court decided to retain the appeal of that injunction directly from the trial court rather than wait for an intermediate appellate court to decide the case. The Oklahoma supreme court rules state that the Oklahoma supreme court will retain a case upon consideration of three factors: (1) whether a case involves an area of law undecided in Oklahoma; (2) whether a split exists between the lower state appellate courts on the matter; and (3) whether the issue raised on appeal “concern[s] matters which will affect public policy” that, when decided by the Oklahoma supreme court, are “likely to have widespread impact.” Because no lower appellate courts had yet decided a challenge to HB 2780 and there had been no other abortion ultrasound laws in the state before HB 2780, the Oklahoma supreme court must have taken the appeal either because HB 2780 involved an area of law undecided in Oklahoma, or because the issue concerned a matter that would affect public policy and have widespread impact. This is just one of the possible discrepancies the Roberts Court could chose to address.
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In a cursory and unanimous opinion the Oklahoma Supreme Court affirmed the judgment of the trial court but overturned HB 2780 under the U.S. Constitution, not the Oklahoma constitution. In its opinion striking the law as unconstitutional the court cited Planned Parenthood v. Casey, the case that invalidated a Pennsylvania spousal notification requirement but upheld a 24-hour waiting period and informed consent and parental consent requirements under an “undue burden” standard as the sole basis for its decision. The court held:
Upon review of the record and the briefs of the parties, this Court determines this matter is controlled by the United States Supreme Court decision in [Casey], which was applied in this Court’s recent decision of In re Initiative No. 395, State Question No. 761. Because the United States Supreme Court has previously determined the dispositive issue presented in this matter, this Court is not free to impose its own view of the law. … The challenged measure is facially unconstitutional pursuant to Casey. The mandate of Casey remains binding on this Court until and unless the United States Supreme Court holds to the contrary. The judgment of the trial court holding the enactment unconstitutional is affirmed and the measure is stricken in its entirety.
“[U]nless the United States Supreme Court holds to the contrary”—it’s as if the Oklahoma supreme court was intentionally dishing the issue up for the Roberts Court to dig into.
Because the Oklahoma supreme court chose to strike down HB 2780 under the federal rather than the Oklahoma constitution, its ruling in Pruitt creates a potential split with the Fifth Circuit Court of Appeals that has previously upheld a similar ultrasound requirement in Texas. This apparent disagreement in whether mandatory ultrasound laws represent an undue burden on abortion rights under Casey is just the kind of question the Supreme Court likes to answer. In Texas Medical Providers Performing Abortion Services v. Lakey, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit unanimously upheld a Texas ultrasound law in an opinion written by notorious ultra-conservative Judge Edith Jones, who is currently under investigation for judicial impropriety related to racist comments made at a recent speaking event. The Texas law upheld in Lakey is similar to HB 2780 in that it requires physicians to perform and display the ultrasound image of the fetus and exempts women facing medical emergencies. But the Texas law goes further than the Oklahoma law by requiring physicians to make the heart tones of the fetus audible to women, and then wait at least an additional 24 hours before proceeding with an abortion. Under the Texas law, a patient may decline to view the images or hear the heartbeat, but they may only decline to hear the explanation of the ultrasound images if their pregnancy meets one of three narrow exceptions. And just like HB 2780, under the Texas ultrasound law, pregnant women seeking an abortion have to certify their doctor’s compliance with the requisite procedures. From a legal perspective that means that one federal appeals court has ruled a mandatory ultrasound law that is more stringent than the Oklahoma law constitutional, but using the same reasoning employed by the Oklahoma supreme court to strike that state’s ultrasound law.
The Firth Circuit decision upholding the Texas ultrasound law is an example of conservative co-opting constitutional law coupled with the cognitive dissonance required to find an expensive, unnecessary, and invasive medical procedure “empowering” to women, and just the kind of decision abortion-rights advocates would like to keep away from the Roberts Court. In reaching its decision that the Texas law was constitutional, the Fifth Circuit expressly relied on Casey’s holding that an informed-consent statute does not consume any First Amendment right against compelled speech, in this case providers who are forced to recite the ultrasound script or women who are forced to listen to fetal heart tones, when it requires the giving of “truthful, non-misleading information” that is “relevant” to the woman’s decision regarding the abortion. The Fifth Circuit found that the images and audio produced by an ultrasound are the “epitome of truthful, non-misleading information,” and are not different in kind, though admittedly “more graphic and scientifically up-to-date,” than the disclosure requirements upheld by the Supreme Court in Casey, despite the fact that they have no direct bearing on the issue of whether a woman needs an abortion and can legally choose abortion care.
It is with this backdrop that the Roberts Court will consider stepping into the ultrasound debate, and with this reasoning supplied by Judge Jones the Court could weigh in next year. Should the Court decline to review the case then the Oklahoma supreme court decision permanently blocking the law will stand. But should the court decide to review the decision then by this time next year we will have a much better idea just how far abortion rights have receded in this country.