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Judge hints he'll uphold sonogram law

Associated Press

JIM VERTUNO,Associated Press

Updated: Jan 20, 2012 4:34 PM

AUSTIN (AP) — A challenge to a Texas law that requires doctors to perform a sonogram before a woman has an abortion returned to federal court Friday, and the judge suggested an appeals court has given him little choice but to rule the law constitutional.

U.S. District Judge Sam Sparks in Austin seemed frustrated by a recent appeals court ruling that all but told him how to rule on the case.

"You just can't ride a horse that's been buried," Sparks said. "What authority, other than a Scotch-Irish temper, would I have the authority to reverse the (appeals court), other than to feel good?"

But a group of doctors and the New York-based Center for Reproductive Rights continue to argue that the law infringes on the doctors' First Amendment rights and is unconstitutionally vague regarding enforcement. The doctors argue the law requires them to perform a procedure that is not medically necessary and that women may not want to have done.

The law requires doctors to show the woman the image of the sonogram, to play the fetal heartbeat aloud and describe the features of the fetus at least 24 hours before the abortion. There are exceptions in cases of rape, incest, fetal deformities and for women who have to travel great distances to reach a doctor.

Julie Rikelman, attorney for the Center for Reproductive Rights, told Sparks that the law leaves no room for medical judgment by the doctor, forces women to submit to the sonogram and forces doctors to convey information the women may not want to see or hear.

In 2011, Sparks upheld the sonogram requirement but struck down the provisions requiring doctors to describe the images. He also struck down a requirement that victims of sexual assault or incest sign statements attesting to that fact, writing that the state was trying to "permanently brand" those women. Sparks also struck down several enforcement penalties for doctors who did not comply.

But on Jan. 10, a three-judge panel of the 5th U.S. Circuit Court of Appeals overturned Sparks' temporary order blocking the law.

The appeals court opinion, written by Chief Judge Edith H. Jones, signaled that the panel believes the law to be constitutional. Requiring disclosures of a sonogram, the fetal heartbeat and their medical descriptions "are the epitome of truthful, non-misleading information," Jones wrote, adding that she expects Sparks to use the opinion for guidance when he makes any further decisions in the case.

That ruling effectively made the law "totally enforceable," Sparks said, "I suspect just to prevent this court from acting."

Sparks did not issue a formal ruling and did not indicate when he will.

Rikelman said she still hopes Sparks will rule that the law creates an unconstitutional burden on doctors. The Center for Reproductive Rights has asked the appeals court to reconsider its ruling and will likely appeal any ruling from Sparks that upholds the law.

Supporters argue the law ensures women will fully understand what abortion entails and will lead to fewer abortions. About 81,000 abortions are performed every year in Texas. Gov. Rick Perry, a Republican who on Thursday ended his campaign for president, had made the law one of his priorities in the 2011 legislative session.

"This raises the standard of care for women seeking abortion," said Joe Pojman, executive director of Texas Alliance for Life. "I think the law will be totally upheld."

Copyright 2012 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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