Jun 13, 2011
Jun 13, 2011
Jan 10, 2012
In 2011, a group of abortion providers represented by the Center for Reproductive Rights filed a class action lawsuit challenging HB 15, a Texas law which prohibits a woman from getting an abortion unless her physician first performs a sonogram, places the sonogram images in her view, describes the images to her, makes fetal heart sounds audible, if possible, and describes those sounds to her. The woman is obligated to view and hear the sounds even if she doesn’t want to, except in cases of sexual assault or incest, or if the woman is a minor. The law also requires that a woman wait 24 hours after the sonogram before obtaining abortion unless she lives more than 100 miles from the nearest abortion provider, in which case she must wait two hours.
Plaintiffs argued that the ultrasound requirements violate the First Amendment rights of doctors and patients since the law requires an abortion provider to deliver politically-motivated messages to the patient even if the patient doesn’t want to hear them. Plaintiffs further argued that the law is discriminatory, insofar as it subjects women to paternalistic “protections” that are not imposed on men. Plaintiffs also argued that the ultrasound requirements serve no medical purpose and violate basic principles of medical ethics.
On August 30, 2011, Judge Sam Sparks granted Plaintiffs’ Motions to Certify both Plaintiff and Defendant Classes and partially granted Plaintiffs’ Motion for a Preliminary Injunction, enjoining most of the ultrasound-related requirements. The State immediately filed a Notice of Appeal to the United States Court of Appeals for the Fifth Circuit.
On January 10, 2012, the Fifth Circuit vacated the preliminary injunction and on January 13, it issued an order directing that the entire law should take effect immediately. On February 6, 2012, Judge Sparks issued a decision stating that he disagreed with the Fifth Circuit’s constitutional analysis. Specifically, Judge Sparks wrote that the Fifth Circuit “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.” Judge Sparks also said that 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.” Nevertheless, Judge Sparks held that the Fifth Circuit’s decision tied his hands and required him to deny the Center’s request for a permanent injunction of the law. On February 10, 2012, the Fifth Circuit denied the Center’s request for rehearing en banc.
In Stuart v. Camnitz, the Fourth Circuit Court of Appeals struck down a similar speech-and-display requirement in North Carolina’s Woman’s Right to Know Act. North Carolina has appealed that ruling to the U.S. Supreme Court but the court declined to take the case.
In addition, the Eighth Circuit in Planned Parenthood v. Rounds ruled that a requirement in South Dakota’s informed consent law that physicians inform their patients that abortion can lead to suicide ideation did not violate the First Amendment. As a result of the split between the Fourth Circuit, on the one hand, and the Fifth and Eighth circuits regarding the constitutionality of speech requirements in “informed consent” laws, the U.S. Supreme Court will likely resolve the issue.
**last updated March 21, 2018