Wednesday, August 31, 2011
Federal District Judge Sam Sparks has enjoined portions of HB 15, an Act “relating to informed consent to an abortion.” H.B. 15, 82nd Leg., Reg. Sess. (Tex. 2011) in his Order in Texas Medical Providers Performing Abortion Services v. Lakey.
Judge Sparks certified both a plaintiff class of medical providers and a defendant class of state actors, then proceeded to consider the plaintiffs' constitutional objections one by one. In his 55 page opinion, Judge Sparks had little complimentary to say about the lawyering on both sides; indeed, he leveled sharp criticisms.
Judge Sparks also made clear his disapproval of the intent behind the Act that amended Texas' already restrictive abortion laws, stating in footnote 2: "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." Yet this footnote was in the context of his rejection of Plaintiffs' equal protection arguments, which he found meritless: "In short, 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."
Criticizing the "litany" of vagueness challenges by Plaintiffs and agreeing with the "Defendants’ characterization that 'plaintiffs have chosen to throw everything at the wall and hope something sticks,' ” Judge Sparks nevertheless found that three provisions of the Act were unconstitutionally vague:
- First, the phrase “the physician who is to perform the abortion,” a phrase used in section 171.012(a)(4), is unclear as it relates to both multi-physician procedures and unplanned physician substitutions.
- Second, the conflict between sections 171.012(a)(4) and 171.0122 creates unconstitutionally impermissible uncertainty regarding what will, and what will not, subject a physician or a pregnant woman to liability.
- Finally, section 171.0123 is unconstitutionally vague regarding the scope of a physician’s duty to provide paternity and child support information to women who choose not to get abortions.
In finding these sections unconstitutionally vague, Judge Sparks emphasized that the lack of clarity was balanced against the serious penalities, so that neither physicians nor women should have to trust Defendants’ representations about the meaning of the provisions or otherwise guess.
Most seriously, Judge Sparks found several provisions of the Act constitutionally infirm under the compelled speech doctrine of the First Amendment. Sparks distinguished Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), on which the Defendants largely relied, by noting that
the Pennsylvania statute in Casey simply required physicians to inform pregnant women about the risks of an abortion, the potential alternatives thereto, and the availability of additional informational materials related to those alternatives. By contrast, the Act under consideration here requires physicians to provide, in addition to those legitimate disclosures, additional information such as descriptions of “the presence of cardiac activity,” and “the presence of external members and internal organs” in the fetus or embryo. The Court does not think the disclosures required by the Act are particularly relevant to any compelling government interest, but whatever relevance they may have is greatly diminished by the disclosures already required under Texas law, which are more directly pertinent to those interests.
Judge Sparks also found troubling under compelled speech doctrine Section 171.012(a)(5) that requires a pregnant woman to complete and sign a specified election form that certifies her understanding of many of the Act’s various requirements. "The Court need not belabor the obvious by explaining why, for instance, women who are pregnant as a result of sexual assault or incest may not wish to certify that fact in writing, particularly if they are too afraid of retaliation to even report the matter to police. There is no sufficiently powerful government interest to justify compelling speech of this sort, nor is the Act sufficiently tailored to advance such an interest." Compounding this compelled speech was the section that required the patient's certification be placed in the woman's medical records and maintained by the facility for seven years - - - making it "difficult to avoid the troubling conclusion the Texas Legislature either wants to permanently brand women who choose to get abortions, or views these certifications as potential evidence to be used against physicians and women."
The Judge gave the severability clause of the Act effect, although he also enjoined "enforcement of any portion of the Act that conflicts with any of the above relief. This includes, but is not limited to, any penalty provision of the Act or any other statute that would impose a penalty for a person acting in compliance with this opinion."
"The Court is bound to respect legislative intent, but not at the expense of the Constitution," Judge Sparks concluded. Presumably, the preliminary injunction order will be appealed to the Fifth Circuit.