Search  |  Login  |  Register

By Walter M. Weber1326313008000

Expectant mothers and their unborn babies won an important victory in federal court yesterday. The U.S. Court of Appeals for the Fifth Circuit rebuffed a challenge to the Texas sonogram bill, a new law that, among other things, requires abortionists, before doing an abortion, to take and display to the mother a sonogram of the unborn baby and to let the expectant mother hear the baby’s heartbeat. The American Center for Law and Justice (ACLJ) had filed an amicus brief, on behalf of itself and the Houston Coalition for Life (HCL), supporting the Texas law. The case is Texas Medical Providers Performing Abortion Services v. Lakey, and the appeals court’s opinion is available here.

The new Texas law had been scheduled to apply to abortions after October 1, 2011. However, abortionists had filed a federal lawsuit challenging the new bill, and a federal district court on August 30 had granted a preliminary injunction forbidding enforcement of key sections of the statute. The state appealed, and the ACLJ filed a friend-of-the-court brief supporting the state’s appeal.

The district court had ruled that requiring abortionists to provide information to women as part of the informed consent process “compels speech” and triggers strict scrutiny. The court went on to hold that the Texas law was not likely to survive such strict scrutiny.

The ACLJ/HCL amicus brief attacked this part of the district court ruling. “Informed consent requirements, while they may literally compel speech, do not trigger strict constitutional scrutiny,” the brief explained. “Rather, the First Amendment requires only that such measures be reviewed for reasonableness. There is no exception to this rule just because the context involves abortion.”

This should be common sense. Informed consent is an established part of medical practice. Doctors are supposed to advise their patients, beforehand, of the nature and risks of a contemplated procedure. A physician who keeps his patient in the dark can be sued for malpractice. Nevertheless, the abortionists in this case argued for a different, demanding legal standard for informed consent. But as the ACLJ/HCL brief pointed out, to subject informed consent speech to strict scrutiny “would throw into disarray an entire area of law.” The Supreme Court has already rejected this notion: “Thus, a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion is, for constitutional purposes, no different from a requirement that a doctor give certain specific information about any medical procedure.” (Planned Parenthood v. Casey, 1992)

Happily, the three judges on the Fifth Circuit Court of Appeals panel unanimously agreed: “such laws are part of the state’s reasonable regulation of medical practice and do not fall under the rubric of compelling ‘ideological’ speech that triggers First Amendment strict scrutiny.”

The court of appeals went on to note that it is no objection that the woman, after receiving the information, might decide not to abort. “If the sonogram changes a woman’s mind . . . that is a function of the combination of her new knowledge and her own ‘ideology’ (‘values’ is a better term), not of any ‘ideology’ inherent in the information she has learned about the fetus.”

Regarding the particular disclosures required under the Texas law, the appeals court observed that it is “obvious” that the “disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information.” Indeed, the court added, denying up-to-date information “is more of an abuse to her ability to decide than providing the information.”

The case now proceeds back in the district court, where the state is well-positioned to win the case entirely. In the meantime, the Fifth Circuit has struck a valuable blow against the ongoing deception characteristic of abortion practice. Only by concealing the reality that abortion destroys a living child with a beating heart has the abortion industry been able to keep pregnant women in massive numbers on its lethal disassembly line. Now that women in Texas will be seeing and hearing their babies before the abortionist can apply the knife to them, we may see a very significant drop in the number of abortions done. If so, that will be a triumph of both knowledge and life.

Latest in
Pro Life

Defending Crisis Pregnancy Centers

By Edward White1412112355610

Since 2010, the American Center for Law & Justice (ACLJ) has been defending the First Amendment rights of two non-profit organizations that operate numerous pro-life crisis pregnancy centers in New York City. We filed a lawsuit challenging a city law (Local Law 17) that imposes burdensome...

read more

ObamaCare Directly Funds Abortion

By Matthew Clark1410913584000

A new report from the Government Accountability Office reveals what we’ve been saying all along: ObamaCare funds abortion. Put more directly: you are paying for abortion with your federal tax dollars in direct violation of federal law. In fact the new report details a myriad of ways that despite...

read more

Big Abortion Tries to Buy an Election

By David French1410202422000

There are few states more pro-life than Tennessee. When you poll my friends and neighbors (I live in Columbia, Tenn., perhaps best-known as the “Mule Capital of the World”), you’ll find that 70 percent of Tennesseans would like to ban abortion in all cases or in all cases except rape, incest, or...

read more

Hold Planned Parenthood Accountable

By Walter M. Weber1409239247000

At the ACLJ, we have been working overtime to get a whistleblower case against Planned Parenthood back on track after a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ordered the case dismissed. Helping that effort are two friend-of-the-court briefs filed, urging the Ninth...

read more