Texas Medical Providers Performing Abortion Services v. Lakey


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The Center challenged a newly enacted Texas law that prohibits a woman from getting an abortion unless her physician first performs an ultrasound, places the ultrasound images in her view, describes the images to her, makes fetal heart sounds audible, if possible, and describes those sounds to her, whether or not she wants to see or hear them.

Filing Date: 06/13/11

State: Texas

Plaintiff(s): TEXAS MEDICAL PROVIDERS PERFORMING ABORTION SERVICES, a class represented by METROPOLITAN OB-GYN, P.A., d/b/a REPRODUCTIVE SERVICES OF SAN ANTONIO and ALAN BRAID, M.D., on behalf of themselves and their patients seeking abortions

Center Attorney(s): Julie Rikelman

Co-Counsel/Cooperating Attorneys: Jamie A. Levitt, J. Alexander Lawrence of Morrison &amp, Foerster, LLP, (NYC), Susan Hays, Law Office of Susan Hays, PC (Dallas), Dicky Grigg, Spivey &amp, Grigg, LLP (Austin)

Summary: On June 13, 2011, the Center for Reproductive Rights filed a class action lawsuit against Texas's new abortion ultrasound law. The challenged law prohibits a woman from getting an abortion unless the doctor who will provide the abortion (or a certified ultrasonographer) performs an ultrasound on the woman, takes steps to show and describe the ultrasound images to the pregnant woman, and plays the sound of the fetal heart and describes it. The law requires the physician to personally place the ultrasound images where the woman can see them and describe the images to the woman in detail, even if she says no. The woman must then wait at least 24 hours after the ultrasound before she can obtain an abortion (the 24-hour waiting period is shortened to two hours for women who live 100 miles or more from an abortion provider). The suit was brought on behalf of all Texas medical providers of abortion services and their patients.

The Center argued that the ultrasound requirements violate the First Amendment rights of both the doctor and the patient by forcing a physician to deliver politically-motivated communications to the patient, even over the patient's objections. The Center also argued that the law discriminates against women by subjecting them to paternalistic "protections" not imposed on men. In addition, the Center contended that the ultrasound requirements violate basic principles of medical ethics and serve no medical purpose. The Center filed this challenge in the United States District Court for the Western District of Texas, Austin Division.

On August 30, 2011, Judge Sam Sparks granted Plaintiffs\' Motions to Certify both Plaintiff and Defendant Classes and partially granted Plaintiffs\' Motion for a Preliminary Injunction, enjoining most of the ultrasound-related requirements. The State immediately filed a Notice of Appeal to the United States Court of Appeals for the Fifth Circuit.

On January 10, 2012, the Fifth Circuit vacated the preliminary injunction and on January 13, it issued an order directing that the entire law should take effect immediately. On February 6, 2012, Judge Sparks issued a decision stating that he disagreed with the Fifth Circuit's constitutional analysis. Specifically, Judge Sparks wrote that the Fifth Circuit "has effectively eviscerated the protections of the First Amendment in the abortion context," and "in no other medical context does the government go so far in telling doctors what they must, and must not, do." Judge Sparks also said that there "can be little doubt that [the law] is an attempt by the Texas Legislature to discourage women from exercising their constitutional rights by making it more difficult for caring and competent physicians to perform abortions." Nevertheless, Judge Sparks held that the Fifth Circuit's decision tied his hands and required him to deny the Center's request for a permanent injunction of the law. On February 10, 2012, the Fifth Circuit denied the Center's request for rehearing en banc.

After the Fifth Circuit ruled in the State’s favor, the State filed a request asking that Plaintiffs pay the State’s attorney’s fees incurred in defending the ultrasound law. Judge Sparks refused the State’s request, finding that Plaintiffs had brought important constitutional claims and should not be penalized for challenging the law. The Fifth Circuit agreed with Judge Sparks and denied the State’s appeal of the attorney’s fees ruling. The attorney’s fees ruling protects the ability of civil rights groups to bring future suits in federal court. The Southern Poverty Law Center filed an amicus brief in support of the Center in the attorney’s fees appeal.