(CN) – Texas can require a contentious informed-consent process for abortions and penalize doctors who don’t abide by the changes, the 5th Circuit ruled Tuesday.
Metropolitan Ob-Gyn P.A. dba Reproductive Services of San Antonio and its owner and director, Dr. Alan Braid, filed a federal class action on June 13, decrying Texas House Bill 15 as unconstitutional.
Effective Sept. 1, 2011, the bill amended the Texas Woman’s Right to Know Act and altered the process through which physicians obtain informed consent to perform abortions in the state. Physicians can lose their licenses for violating the provisions, which places several requirements on the doctors such as making them conduct a sonogram and provide the patient with images and sounds of the fetus.
Two days before the law was set to take effect, U.S. District Judge Sam Sparks blocked four of its provisions for violating the First Amendment, plus three additional provisions that he deemed unconstitutionally vague. Texas appealed immediately.
Declining to wait on Sparks’ summary judgment findings, the New Orleans-based 5th Circuit vacated the preliminary injunction Tuesday.
The 24-page ruling focuses on the Supreme Court’s 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, reaffirmed recently by the 2007 decision in Gonzales v. Carhart.
“The import of these cases is clear,” Chief Judge Edith Jones wrote for a three-judge panel. “First, informed consent laws that do not impose an undue burden on the woman’s right to have an abortion are permissible if they require truthful, nonmisleading, and relevant disclosures. Second, 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. Third, ‘relevant’ informed consent may entail not only the physical and psychological risks to the expectant mother facing this ‘difficult moral decision,’ but also the state’s legitimate interests in ‘protecting the potential life within her.'”
“Finally, the possibility that such information ‘might cause the woman to choose childbirth over abortion’ does not render the provisions unconstitutional,” Jones added.
The panel found “that the enumerated provisions of H.B. 15 requiring disclosures and written consent are sustainable under Casey, are within the state’s power to regulate the practice of medicine, and therefore do not violate the First Amendment.”
Judge Patrick Higginbotham wrote a separate concurring opinion to “offer a different accent upon the appropriate role of the First Amendment in this case.”
“To my eyes there are two settled principles in speech doctrine that inform our decision today,” Higginbotham wrote. “First, in protection of a valid interest the state need not remain neutral in its views and may engage in efforts to persuade citizens to exercise their constitutional right to choose a state-preferred course. Second, the state cannot compel a citizen to voice the state’s views as his own. It is immediately apparent that both of these principles are implicated by state regulation of doctors’ communications with their patients. It is equally apparent that, given the Supreme Court’s decision in Casey, each is fully and appropriately abided today, without diminishing their vitality.”
“We must and do apply today’s rules as best we can without hubris and with less sureness than we would prefer, well aware that the whole jurisprudence of procreation, life and death cannot escape their large shrouds of mystery, yet, and perhaps not, to be lifted by advances of science,” Higginbotham concluded.