Doctors Challenge Texas Abortion Law

"The Act allows the woman to certify that she elects not to hear an explanation of the ultrasound images in only three circumstances: (a) if she is 'pregnant as a result of a sexual assault, incest or other violation of the Texas Penal Code that has been reported to law enforcement authorities or that has not been reported because [the woman] reasonably believe[s] that doing so would put [her] at risk of retaliation resulting in serious bodily injury;' (b) if she is a minor obtaining an abortion pursuant to a judicial bypass; or (c) if the 'fetus has an irreversible medical condition or abnormality, as identified by reliable diagnostic procedures and documented in [the patient's] medical file.'" (Brackets in complaint.)

While the law gives a pregnant woman the option not to view the sonogram, or hear the fetal heartbeat, if any, the "Act also states that the ultrasound images are 'required to be provided to' the woman and that 'consent to an abortion is voluntary and informed only if,' inter alia, the image is placed in the woman's view," the complaint states.

"In light of the foregoing, it is not clear under the Act whether: (1) the woman's

choice not to view the ultrasound images relieves the physician of the obligation to place the ultrasound images in the woman's view; (2) the woman's choice not to hear the verbal explanation relieves the physician of the obligation to provide that verbal explanation; and (3) the woman's choice not to hear the heart auscultation relieves the physician of the obligation to make the heart auscultation audible, if present.

"In light of these ambiguities, and the harsh penalties and strict liability imposed by the Act, a physician seeking to avoid those penalties, including the risk of losing his or her medical license, will be compelled to: (1) place the ultrasound images in the woman's view even if the woman has indicated that she does not want to see them; (2) describe the ultrasound images to every woman seeking an abortion, even to a woman who falls in one of the three designated categories and has indicated that she does not want to hear the explanation; and (3) make the heart auscultation audible (either personally or through an agent who is a certified sonographer)." (Parenthesis in complaint.)

The class claims, "The Act will impose irreparable harms on patients who seek, and physicians who provide, abortions by depriving them of their constitutional rights to free speech, privacy, equal protection, and due process."

The class seeks declaratory judgment that HB 15 is "unconstitutional and unenforceable" for vagueness, and because it "compels physicians to convey to their abortion patients in a private medical setting unwanted government speech that falls outside accepted and ethical standards and practices for medical informed consent," and subject patients to this same "unwanted government speech.

The Act also discriminates on the basis of gender "by subjecting women to burdens not imposed on men; by perpetuating patronizing and paternalistic stereotypes of women as in need of special 'protections' and unable to make medical decisions on their own; and by enforcing the notion that a woman's primary and proper role is that of mother," the class says. (Graph 120)

Finally, the class claims the Act violates the Equal Protection Clause of the 14th Amendment by treating abortion patients and providers "differently than providers and patients of all other medical services in the state without any basis for the differential treatment other than discriminatory views towards women and animus towards abortion providers and patients who seek their services."

Here are the defendants: Dr. David Leakey, commissioner of the Texas Department of State Health Services, in his official capacity; Mari Robinson, executive director of the Texas Medical Board, in her official capacity; and David Escamilla, County Attorney for Travis County, in his official capacity and as representative of the class of all county and district attorneys in the State of Texas with authority to prosecute misdemeanors; and their employees, agents and successors.

The class is represented by Austin attorney Dicky Grigg.

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