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Fifth Circuit: Texas Sonogram Bill Should Be Enforced

Fifth Circuit: Texas Sonogram Bill Should Be Enforced

The Fifth Circuit Court of Appeals denied a request to reconsider a lawsuit challenging a Texas law that forces doctors to perform an ultrasound on a woman, whether she wants one or not, before an abortion. That means the law can take effect as soon as state officials set a start date to begin enforcing the law.

The law requires women seeking abortions to be presented an ultrasound image and a fetal heartbeat before they can have the procedure. Since the vast majority of abortions are performed prior to the 12th week and traditional ultrasounds cannot capture reliable fetal images for many weeks later, compliance with the law will require vaginal ultrasounds, an extremely intrusive procedure that serves the single purpose of trying to dissuade a woman from having the abortion.

Doctors challenged the law arguing it unconstitutionally overrode their medical opinions, interfered with patient relationships, and made them “a mouthpiece” of the state by requiring certain tests and instructing how those tests should be presented to patients. If the doctors do not or refuse to follow the law they lose their medical license.

But all of this seems just fine to the Fifth Circuit Court of Appeals. What’s worse, the judges decimate the notion of informed consent to justify the intrusion. The court held that compelling doctors to make “factual statements” to a patient is permitted under informed consent, so presumably from the court’s perspective, compelling doctors to run a specific battery of tests, under every situation whether medically indicative or not, is also part of informed consent. “The required disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information,” the three judges wrote.

Much of the decision is grounded in the 1992 Supreme Court decision Planned Parenthood v. Casey that allows states to require certain factual, informative materials be provided to abortion patients. Fifth Circuit Chief Justice Edith Jones held that ordering these tests and mandating doctors describe the results to their patients is the logical legal extension of that ruling.

The Fifth Circuit’s willingness to extend Casey so far that mandated intrusive tests are now to be considered a routine part of receiving abortion care may have done more to set women’s health back then all the attacks launched by Republicans in the last year combined. This decision further ingrains into our jurisprudence a worldview that now has the force and effect of law that women simply cannot be trusted to make informed medical decisions on their own without coercion and manipulation by the state.

If given the opportunity, I’m sure Justice Scalia would agree. So women’s health advocates now must ask whether we offer the Justice the chance (and hope that mandatory vaginal penetration by the state is even too much and too offensive for Justice Kennedy) or whether we let this abomination in the 5th Circuit stand. Either way women’s status as second-class citizens stands in at least one federal appellate circuit while our national political conversation remains fixed on outlawing contraception.

Time to dig in for the fight because it’s getting nasty.

Related Stories:

Texas Sonogram Bill Remains In Limbo

Texas Judge: Firing Woman For Breast Pumping OK

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Photo from steakpinball via flickr.

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55 comments

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11:34AM PST on Feb 25, 2012

I find this to be almost unbelievable. What happened to our civil rights? How dare the government say you have to have this sonogram? It has to stop or women will be right back to where they were 200 years ago. What right will they take next? The right to vote?!

3:11AM PST on Feb 25, 2012

One of the most appalling things about this appalling decision from the 5th circuit is that it's written by Judge Edith Jones. She does for women what Clarence Thomas does for African-Americans and Adolph Eichmann did for Jews. If this crap outrages you then it's past time for women in Texas to rise up, join with progressive men and outvote these Rethuglucan fascist bastards out in perpetutity.

4:33AM PST on Feb 24, 2012

Another state rape state. This is completely out of hand, we need to stand up and fight these POS men who think they can tell us how to live our lives and make our decisions for us. Enough is enough. This war, ladies, and it is being waged against us.

12:09PM PST on Feb 16, 2012

How can these groups made up largely of men think it is okay to now force women to have an invasive procedure before having an abortion? To me, this seems like just another way to push pro life beliefs on those who may be pro choice!

5:06AM PST on Feb 16, 2012

Thanks for the article.

11:06AM PST on Feb 15, 2012

Any woman who would vote a republican into power needs to get her head examined. Republicans, for some unfathomable reason are at war with women. They want to strip us naked and pummel us until we cannot fight back. If we stand here and allow them to do so we deserve what they dish out. Fight back with all your strength especially at the ballot box. Vote republicans out of power and never let them back again. Hold each and every one of them personally responsible for these decisions against women because whether they are State or Federal each and every one seems to be on the same page put women in their place, barefoot, pregnant and in the kitchen.

11:00AM PST on Feb 15, 2012

I am from Texas and I am ashamed to admit it, but Texas is one of the most backward states around.

7:24AM PST on Feb 15, 2012

I would move out of texas if any other state was better, but its not. i cant live up north, i cant tolerate the cold and if every state in the US is under the same idiotic president then no where in the US is safe. if i can find a nice place elsewhere then I will leave the US for good.

Now this law does not affect me, i cant tolerate abortions so i wont get one, i want to be a mom and plan on giving birth to all the kids I'm pregnant with. i hope its only two. The only way i would conciser an abortion is if my life is in danger. With that said, i also dont think we should force that on any body else. if they want to get rid of the baby fine, i dont have to deal with it. If the state if going to make women have an ultra sound then they are paying for it and not the woman having the abortion. If someone wants an abortion let them, some wont regret it and if someone does they have to live with it not the rest of us.

4:24AM PST on Feb 15, 2012

It takes a village to raise a child. Looks like the village idiots are out in force...

10:06PM PST on Feb 14, 2012

FOR Charli S. " It's a shame we can't make men pregnant. "
Actually science can- but no man has yet survived the procedure. Though it is still being worked.
http://www.malepregnancy.com/science/
Steve R. would you like to try since you are such an expert on the subject?

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