Today, a three-judge panel of the Fifth Circuit Court of Appeals issued a unanimous decision upholding a newly enacted Texas ultrasound law and completely vacating a lower court’s injunction against the law’s enforcement.
At issue were provisions requiring that abortion providers display an ultrasound and provide a medical description of the dimensions of the embryo or fetus, the presence of cardiac activity, and the presence of external members and internal organs—all as part of the informed consent necessary before abortion.
Among many arguments, the plaintiff-abortion providers claimed that these provisions constituted unconstitutional “compelled speech.” Put simply, the abortion providers did not want to provide pertinent information to women before abortion, and went to court to try to avoid doing so. The district court had agreed with the plaintiff-abortion providers that requiring physicians to provide this kind of information was unnecessary and amounted to “compelled speech.”
In other words, the district court ignored the basic ruling in Planned Parenthood v. Casey that states like Texas can ensure that women receive information on the consequences of abortion to the unborn child. Fortunately, the Fifth Circuit placed women’s health and well-being above the preferences of abortion providers who did not want to disseminate truthful, medical information.
Significantly, the Fifth Circuit ruled that the disclosure of the ultrasound, the fetal heartbeat, and their medical descriptions are “the epitome of truthful, non-misleading information. They are not different in kind… than the disclosures discussed in Casey….” Because the Texas ultrasound requirement is the first requirement of its kind to reach a federal appellate court, this decision is particularly important. Not only does it affirm the constitutionality of ultrasound laws across the nation (there is currently some form of ultrasound requirement in 21 other states), but it also further substantiates what the pro-life movement has been saying for years: women need ALL available information before choosing abortion. Information on physical and psychological risks, as well as all of the consequences to the unborn child, must be brought to light for a woman’s consent to be fully “informed.” Clearly, an ultrasound constitutes “truthful, non-misleading” information, and today the Fifth Circuit agreed.
In what can be described as a judicial “hand-slapping,” the Fifth Circuit advised the lower district court to use today’s decision as “guidance” as that court hears continued arguments from the parties over the enforceability of the Texas ultrasound law. The same Fifth Circuit panel will hear any subsequent appeals in the case—a good sign for the ultimate fate of the Texas law.
And in the meantime, the ultrasound law can go into effect, allowing women in Texas to see their unborn children before choosing abortion.
AUL advised on the Texas ultrasound bill before its passage, and has advised the Texas Solicitor General in his defense of the law before the Fifth Circuit.
