Courtroom Battle Begins on Abortion Sonogram Law

Opposing legal teams presented arguments at the first courtroom hearing on Texas' new abortion sonogram law on Wednesday, and U.S. District Judge Sam Sparks said he hoped to rule by September on whether the measure could take effect.

The law, passed by the Legislature and quickly signed by Gov. Rick Perry in May, requires doctors performing abortions to conduct a sonogram of the fetus and describe it in detail to the mother. Women seeking abortions must then wait 24 hours before having the abortion performed, unless they live more than 100 miles away from the nearest clinic, in which case the waiting period is only two hours. Exemptions to the law are provided in cases of rape or incest, medical emergency or in the case of fetal abnormality or defect. 

The New York-based Center for Reproductive Rights filed suit against the law in June, before requesting an injunction to prevent the law from going into effect on Sept. 1. In the suit, Texas Medical Providers Performing Abortion Services. v. Department of State Health Services Commissioner David Lakey, the group argues that the law violates the equal protection clause by “subjecting [women] to paternalistic ‘protections’ not imposed on men” and the First Amendment rights of doctors by “forcing physicians to deliver politically-motivated communications” to their patients.

To Sparks' surprise, the plaintiffs said they weren't arguing the most common avenue for challenging abortion restrictions, the Supreme Court's standard that such laws must not place an "undue burden" on the availability of the procedure. Instead, most of Wednesday's debate focused on whether the law was unconstitutionally vague, and how the law’s statutes would be applied. 

When Assistant Attorney General Erika Kane rose to speak for the defense, Sparks repeatedly questioned her about the tenets of the law. He read aloud the section that mandates the non-renewal of medical licenses for doctors who violate any part of the new requirements. “Now that kind of gets my attention,” he said.

Sparks then asked what it means that the law requires an explanation of the characteristics of the fetus “in a manner understandable to a layperson,” and that the heartbeat be made audible and the sonogram viewable “in a manner consistent with current medical practice,” two conditions that doctors must fulfill if they are to retain their licenses.

In all three cases, the state’s answer was that administrative agencies in charge of enforcing the law would be able to use discretion and determine an appropriate way to enforce the language in the law. “So it’s sort of vague, isn’t it?” Sparks said to laughter in the packed courtroom.

Kane urged the judge not to overturn the entire law if he found constitutional issues with part of the act.

The judge, who was appointed to the bench by George H.W. Bush, said that he had postponed a criminal case in order to hear the motion for the injunction. He offered his packed schedule as one reason he wanted to rule on the injunction soon. “My dance card is full,” he said.

Several states require that abortion providers offer sonograms to patients, but only one other state, Oklahoma, makes the screening mandatory. Oklahoma’s law is currently the subject of a similar court challenge.