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Fifth Circuit hears arguments over Texas abortion law

The US Court of Appeals for the Fifth Circuit [official website] Wednesday heard arguments in an appeal by the state of Texas to lift a lower court's preliminary injunction [order, PDF] against a state abortion law [HB 15 text] that requires doctors to show sonograms to patients before performing the procedure. The three-judge panel did not immediately rule on the state's request to lift the injunction, which Texas Solicitor General Jonathan Mitchell argued should be vacated as an abuse of discretion by the lower federal court. Center for Reproductive Rights (CRR) [advocacy website] attorney Julie Rikelman told the Fifth Circuit panel that the law exceeds the state's authority to regulate the medical profession in that the information in question is not medically necessary for the procedure. CRR had filed a challenge to the newly signed Texas law on behalf of a class of physicians that perform abortions, and in August US District Judge Sam Sparks ruled [JURIST reports] that several provisions of the state law violated the free-speech rights of abortion-performing doctors. The lower court enjoined the provisions of the law requiring physicians to provide, and women to hear, descriptions of the sonogram and fetal heartbeat, holding such provisions violated the First Amendment [Cornell LII backgrounder], and severed three sections of the law held to be unconstitutionally vague. Rikelman noted that other courts have temporarily blocked similar laws in Oklahoma and North Carolina after her group sued, and several other states have enacted less intrusive sonogram laws that make it optional for doctors to provide descriptions to patients. Mitchell argued that the injunction should be lifted on the grounds that the state's interest in protecting fetal life through reasonable regulation trumps free-speech claims. The state wants the entire suit dismissed without trial.

Texas is only one of many states that have recently enacted, and subsequently had to defend, laws restricting abortions. With courts analyzing these cases differently, the outcomes have varied. Regarding another case dealing with the intersection of state abortion laws and free speech rights, last month Scott Gaylord of Elon University School of Law wrote [JURIST op-ed] that a district court applied an outdated government speech test a month earlier when it issued an injunction [JURIST report] preventing North Carolina from allowing drivers to select "Choose Life" license plates. The court in that case ruled that "by authorizing the 'Choose Life' plate without also offering a pro-choice alternative, the State has engaged in impermissible viewpoint discrimination in violation of the First Amendment." In August the Arizona Court of Appeals [official website] ended a two-year injunction [JURIST report] on portions of a law that restricted abortion practices. The original injunction by the Maricopa County Superior Court [official website] held the following provisions as "undue burdens" on a woman's right to an abortion: prohibitions on anyone but a licensed physician performing an abortion; a requirement that women meet with the doctor personally 24 hours before an abortion (the injunction held that a phone call would suffice); that medical professionals have a right to refuse to perform even medically necessary abortions, provide certain contraceptives or the "morning after" pill; and a mandate that parents' consent forms allowing their child to get an abortion be notarized. The appeals court reinstated all of these stipulations, suggesting that the lower judge had applied "strict scrutiny" in error rather than an "undue burden" test. Planned Parenthood of Arizona [advocacy website], a party to the original suit, said the law's enactment will have a severe impact on women in the state, many of whom have to take day-trips to have abortions.

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