Opening arguments in the sonogram lawsuit

No clear indications about how the judge might rule, but there are a few straws in the wind.

U.S. District Judge Sam Sparks, however, indicated some discomfort with portions of the bill that critics consider vague, particularly as physicians could go to jail or lose their medical licenses if they run afoul of the law. Sparks said he would rule before compliance of the new law kicks in Sept. 1.

This is just a ruling on the motion for an injunction that would prevent the new law from taking effect until a ruling is made on the merits of the case.

The Austin-based judge appeared uncomfortable with language in House Bill 15 suggesting that doctors provide explanations “understandable to a lay person” and poking fun at the “everybody knows that” response.

The Trib delves more deeply into the “vagueness” issue, while Hair Balls outlines the unexpected strategy of the plaintiffs.

Most challenges to informed consent laws involve the “undue burden” test, which says that requiring a doctor to perform and discuss a sonogram before an abortion, and possibly wait 24 hours before performing the procedure, is too onerous.

Abortion providers in this case, represented by the New York-based Center for Reproductive Rights, are arguing completely different points: that the guidelines set out in the Woman’s Right to Know Act are confusing and vague; that it violates the doctor’s free speech rights with its prescriptive nature; and that the procedure put a reproductive rights burden on women that is not extended to men.

After spending a number of questions trying to pin down lead attorney Bebe Anderson on which specific clauses in the law were unconstitutional, and establishing that undue burden was not a cause of action, Sparks admitted he was a bit perplexed with the parameters of the case.

“I don’t know what this lawsuit is all about,” Sparks admitted. “I thought I knew, but after the statement of the plaintiffs, I’m not so sure.”

Judge Sparks has asked for each side to submit more briefs in the next two weeks, so there will be more to discuss later.

Back to the Chron:

Sparks noted he spent 30 years defending doctors and hospitals while practicing law in El Paso before President George H.W. Bush appointed him to the federal court. He said it seemed obvious that the purpose of the bill was to limit abortions.

[Texas assistant attorney general Erika] Kane, however, said the purpose is “to provide more information to women prior to the procedure.”

Perhaps Ms. Kane should check with Dan Patrick about that, since he says this law is “the beginning of the end for abortion”. I’m sure he’d say that he believes that the more “information” that the state “provides” to women, by force if necessary, the less they’ll choose to go ahead with the abortion. But if fear and inconvenience contribute to that, I doubt he’d be unhappy about it. Note that the bill contained numerous severability clauses, so if Judge Sparks strikes down some parts of it, the rest of the law can still stand. The inevitable appeal will then go to the Fifth Circuit Court of Appeals.

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