- Associated Press - Tuesday, January 10, 2012

AUSTIN, Texas (AP) — A Texas abortion law passed last year that requires doctors to show sonograms to patients can be enforced while opponents challenge the measure in court, a federal appeals court said Tuesday in a ruling that signaled that the judges believe the law is constitutional.

When the state would begin enforcing the law was not immediately clear. A spokesman for the attorney general’s office said the matter was under review.

The group that brought the case, the Center for Reproductive Rights, is weighing how to continue fighting the law and has 14 days to ask for a rehearing of the case.

The three-judge panel of the 5th U.S. Circuit Court of Appeals overturned a temporary order against enforcing the law and then went further to advise U.S. District Judge Sam Sparks how he ultimately should rule in the case. Chief Judge Edith H. Jones used her opinion to systematically dismantle the argument that the Texas law infringes on the free speech rights of doctors and patients, the key argument against the law.

“The required disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information,” Judge Jones wrote. “The appellees failed to demonstrate constitutional flaws” with the law.

Judge Sparks ruled in August that several provisions of the state law violated the free-speech rights of doctors who perform abortions by requiring that they show and describe the sonogram images and describe the fetal heartbeat, all of which doctors have said is not necessary for good treatment.

Nancy Northup, president of the Center for Reproductive Rights, called the appeals court opinion extreme and out of line with past court decisions.

“This law, and this decision, inserts government directly into a private decision that must be protected from the intrusion of political ideologues,” Ms. Northrup said. “Anyone concerned with the erosion of the constitutional protection of our individual rights as Americans should be profoundly concerned and disappointed by today’s events.”

Gov. Rick Perry, on the presidential campaign trail in South Carolina, praised the court’s decision.

“Today’s ruling is a victory for all who stand in defense of life,” Mr. Perry said. “Every life lost to abortion is a tragedy, and this important sonogram legislation ensures that every Texas woman seeking an abortion has all the facts about the life she is carrying and understands the devastating impact of such a life-ending decision.”

The author of the bill, state Sen. Dan Patrick, said he felt confident the appeals court would uphold the law.

“I am extremely gratified that the sonogram bill will finally take effect,” Mr. Patrick, Houston Republican, said. “I have worked to pass this bill for five years, and I am grateful to the Fifth Circuit for their rapid action on this important issue.”

The New Orleans-based appeals court cited a 1992 U.S. Supreme Court ruling that “upheld an informed-consent statute over precisely the same ‘compelled speech’ challenges made” in the current Texas case.

Earlier rulings have found that laws requiring doctors to give “truthful, non-misleading and relevant” information are reasonable regulations, not ideological speech requiring strict scrutiny under the First Amendment, the appeals court said.

“‘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,’” Judge Jones wrote.

Judge Jones wrote that the argument against requiring the doctor to perform the sonogram only made sense if a “pregnancy is a condition to be terminated.”

“The point of informed consent laws is to allow the patient to evaluate her condition and render her best decision under difficult circumstances,” Judge Jones wrote. “Denying her up-to-date medical information is more of an abuse to her ability to decide than providing the information.”

Under the Texas law, a woman who has suffered rape or incest can avoid the sonogram requirement by certifying that she is a victim. Judge Jones said that the “the district court was especially troubled by the requirement” to make the certification but that it doesn’t violate the woman’s First Amendment rights.

In his temporary order, Judge Sparks also agreed with the doctors appealing the law that the doctor should not be compelled to show the woman the sonogram image, to play the sound of the fetal heartbeat and to explain the sonogram image verbally if the women does not want to look or listen.

Judge Jones found that there was no constitutional argument against these elements of the law.

“The woman seeking an abortion may elect not to receive these images, sounds, or explanations,” Judge Jones wrote. “This election does not obviate the physician’s obligations to display the sonogram images or make audible the heart auscultation; the woman may simply choose not to look or listen.”

Judge Jones wrote that the doctors had failed to make a convincing argument against the law, and she made clear that she expects Judge Sparks to use her ruling when making any further decisions in the case. Judge Jones also said the 5th Circuit would hear any further appeals in this case.