A three-judge panel from the 5th U.S. Circuit Court of Appeals didn’t immediately rule on Texas Solicitor General Jonathan Mitchell’s request for them to lift a preliminary injunction issued by U.S. District Judge Sam Sparks in Austin, Texas.
Sparks ruled in August that several provisions of the state law violated the free-speech rights of abortion-performing doctors.
“Each of these decisions is wrong and should be vacated as an abuse of discretion,” Mitchell said.
A group of medical providers sued to block enforcement of the law, which also requires doctors to describe the fetal heartbeat to a patient before performing an abortion.
“Our argument is that there is nothing in the record and everything to the contrary that this information is medically necessary,” said plaintiffs’ attorney Julie Rikelman, of the New York-based Center for Reproductive Rights.
The judges pressed Rikelman to explain how law exceeds the state’s authority to regulate the medical profession.
“How do you draw the line?” Judge Patrick Higginbotham asked.
“We would draw the line at what is medically necessary,” Rikelman responded. “The government shouldn’t be able to interject itself in our conversations with physicians in that way.”
Sparks has scheduled a Jan. 20 hearing on dueling requests for him to decide the underlying case without a trial. The state has asked Sparks to dismiss the medical providers’ claims, while the plaintiffs are seeking an order that would permanently bar the state from enforcing portions of the law.
The state asked the appeals court to rule before Judge Sparks does, but they didn’t say what they would do. We’ll know soon enough. As noted before, these lawsuits are different than previous ones relating to abortion legislation in that they make a free speech argument, which Judge Sparks largely accepted. There’s always a risk in trying something new, but so far so good for the Center for Reproductive Rights.