After SCOTUS Decision, Abortion Sonogram Foes Consider Options

_{Editor's note: This story has been updated with additional comment.}

Attorneys who represented Texas doctors in a lawsuit against the state’s 2011 abortion sonogram law are considering their legal options following the U.S. Supreme Court’s Monday decision not to revive a similar North Carolina law.

The high court refused to reconsider a North Carolina appellate court's decision striking down a state law that would have required doctors to perform an ultrasound on a pregnant woman and describe the fetus before she could obtain an abortion. Texas has a similar sonogram law — which has been upheld by a federal appeals court. 

“We are in the process of evaluating our legal options in light of today’s order out of the Supreme Court which allowed strong lower court rulings to stand,” said Julie Rikelman, litigation director for the New York-based Center for Reproductive Rights, which filed suit against the sonogram law in North Carolina and Texas.

The Texas law requires doctors to perform a sonogram at least 24 hours before an abortion, display the sonogram images, make the heartbeat audible and provide a verbal explanation of the sonogram results to the woman. Doctors must also describe the medical risks of an abortion and determine the gestational age of the fetus.

In 2012, the U.S. 5th Circuit Court of Appeals upheld the Texas sonogram law.

The Virginia-based 4th Circuit created a split among appellate courts when it ruled against North Carolina’s law last year, making it more likely that the Supreme Court would take up the issue.

In deciding not to consider the North Carolina case, the high court left in place the appellate court’s ruling that struck down the law in that state. The Texas law was not appealed to the Supreme Court.

The Texas attorney general’s office said the Supreme Court’s decision not to take up a case in another appellate court has no effect on the Texas law.

“A Supreme Court decision to not hear a case has no precedential effect, so it shouldn't have any implications for Texas,” said Cynthia Meyer, a spokeswoman for Texas Attorney General Ken Paxton. She added that because Texas cases are heard in the 5th Circuit — and not the 4th Circuit where the North Carolina case was struck down — the state is not “subject to their precedents.”

John Robertson, a law professor at the University of Texas at Austin, agreed, saying the high court's inaction in the North Carolina case is not the same as agreeing with the 4th Circuit, and it has no effect on similar laws in states outside the circuit.

Opponents of the Texas abortion sonogram law have already missed the deadline to appeal the 5th Circuit's decision upholding it, but could now ask the 5th Circuit to reconsider the case, said Lyle Denniston of SCOTUSblog, a judicial blog that analyzes the Supreme Court's moves.

"The challengers in Texas could go back to the court where they lost and try to get that court to reconsider by arguing that the Texas law is as vulnerable to challenge as the North Carolina law was," Denniston said, but he added that it's difficult to convince the appellate court to reconsider a ruling. "The court in the Texas case has a lot of discretion about reopening that case."

The Center for Reproductive Rights challenged both the North Carolina and Texas sonogram laws based on doctors' rights to free speech. They argued the law overruled their medical opinions, intruded on the doctor-patient relationship and made them a “mouthpiece” for the state’s “politically-motivated communications.”

Attorneys for the state of Texas have argued that it is within its constitutional bounds to require doctors to perform the ultrasound and provide pregnant women with relevant information.

The Texas Legislature passed its sonogram law in 2011. The Center for Reproductive Rights quickly filed suit against the law after it was signed by then-Gov. Rick Perry.

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