Texas Abortion Law|Can’t Penalize Doctors

     AUSTIN, Texas (CN) – A federal judge called parts of a controversial Texas abortion bill “unconstitutionally vague” and ruled that for the time being physicians won’t face penalties for not subjecting women to images of the fetus and sounds of the heart before performing abortions.
     Texas House Bill 15, signed by presidential candidate Gov. Rick Perry on May 19, is set to amend the Texas Woman’s Right to Know Act as of Sept. 1.
     In a federal class action filed June 13, Metropolitan Ob-Gyn P.A. dba Reproductive Services of San Antonio and its owner and director, Dr. Alan Braid, called the bill unconstitutional.
     “The Act imposes strict liability, criminal penalties, and a mandatory penalty of the non-renewal of a medical license on any physician who fails to comply with any one of myriad requirements for providing government-mandated information to a patient in advance of an abortion,” the class action claims.
     U.S. District Judge Sam Sparks partially granted a motion for a preliminary injunction on Tuesday, barring multiple penalties that the bill would impose if “the physician does not place the sonogram images where the pregnant woman may view them, or does not make audible the heart auscultation, if the pregnant woman elects not to view the images or hear the heart auscultation.”
     “The court finds several portions of the act are unconstitutionally vague; and further finds the act violates the First Amendment by compelling physicians and patients to engage in government-mandated speech and expression,” Sparks wrote.
     The judge, who was appointed to the bench in 1991 by President George H.W. Bush, was not convinced that the bill would violate the equal protection clause. “If the Texas Legislature wishes to prioritize an ideological agenda over the health and safety of women, the equal protection clause does not prevent it from doing so under these circumstances,” the 55-page order states.
     “It is ironic that many of the same people who zealously defend the state’s righteous duty to become intimately involved in a woman’s decision to get an abortion are also positively scandalized at the government’s gross overreaching in the area of health care,” Sparks added in a footnote.
     The judge also rejected claims that the bill would violate the First and 14th Amendments by subjecting abortion patients to unwanted speech. After sifting through claims alleging that various elements of the bill were unconstitutionally vague, Sparks ultimately accepted that three of the provisions qualified as such.
     “The net result of these provisions is: (1) a physician is required to say things and take expressive actions with which the physician many not ideologically agree, and which the physician may feel are medically unnecessary; (2) the pregnant woman must not only passively receive this potentially unwanted speech and expression, but must also actively participate – in the best case by simply signing an election form, and in the worst case by disclosing in writing extremely personal, medically irrelevant facts; and (3) the entire experience must be memorialized in records that are, at best, semi-private,” the ruling states. “In the absence of a sufficiently weighty government interest, and a sufficiently narrow statute advancing that interest, neither of which have been argued by fefendants, the Constitution does not permit such compulsion.”
     In the same order, Sparks granted the motion to certify a plaintiff class of “all medical providers who perform abortion services in Texas currently and/or in the future.” He also certified a defendant “class of all county and district attorneys in the state of Texas with authority to prosecute misdemeanors.”
     “Although defendants are likely correct all Texas prosecutors would adhere to any injunction issued by the court in this case even if they were not technically legally bound to do so, defendants cannot guarantee this, and the court is not inclined to tempt fate,” Sparks wrote.
     “Certification is not unnecessary where, as here, hundreds of individual state actors, properly accustomed to exercising their prosecutorial discretion, might choose to disregard a non-binding ruling from a federal court,” he added.
     The judge also refused to dismiss claims against Travis County Attorney David Escamilla, whom the complaint names as the representative for the defendant class.
     Other named defendants are Dr. David Lakey, commissioner of the Texas Department of State Health Services, in his official capacity; and Mari Robinson, executive director of the Texas Medical Board, in her official capacity.
     Lakey and Robinson promptly appealed the preliminary injunction, giving notice on Aug. 30.

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