Constitutional Law

Judges Don't Need Roe to Overturn Abortion Laws

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Last week a federal judge in Texas blocked enforcement of the state's new abortion law, which Gov. Rick Perry signed in May. Notably, the decision (PDF) did not hinge on Roe v. Wade or its progeny, so overturning that ruling, a development Perry would welcome, would not necessarily leave states free to regulate abortion as they see fit, the outcome Perry wants.

U.S. District Judge Sam Sparks (who was appointed by George H.W. Bush) ruled that two provisions of the law violate the First Amendment by compelling speech without an adequate justification. One of those provisions requires a physician who performs an abortion to order a sonogram beforehand, show the images to his patient, give her a detailed oral description of what the sonogram shows, and "make audible" the fetus's heartbeat (assuming it is present). "A  physician is  required to  say things and take expressive actions with which the physician may not ideologically agree, and which the physician may feel are medically unnecessary," Sparks noted. He concluded that the requirements cannot survive "strict scrutiny," which demands that mandated speech be "narrowly tailored to serve a compelling government interest." He distinguished the Texas law from the Pennsylvania law upheld by the Supreme Court in the 1992 decision Planned Parenthood v. Casey, saying the compelled speech in the latter case was aimed at protecting the mother's health and ensuring informed consent, as opposed to deterring abortion.

The other provision that Sparks rejected on First Amendment grounds exempts the pregnant woman from viewing the sonogram or listening to the heart sounds if she signs a waiver and exempts her from hearing the oral description of the fetus if she attests that her pregnancy was "a result of a sexual assault, incest, or other violation  of  the  Penal  Code." Sparks observed that "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." He concluded that "there is no sufficiently powerful government interest to justify compelling speech of this sort."

In addition to the First Amendment arguments, Sparks was persuaded by claims that three of the abortion law's provisions violate the Due Process Clause because they are 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) [requiring the physician to display the sonogram and make the heart sounds audible] and 171.0122 [allowing the patient to opt out of looking and listening] 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 his response to Sparks' injunction, Perry confirmed that the law is aimed at preventing abortion while arguing that it is really all about informed consent:

Every life lost to abortion is a tragedy and today's ruling is a great disappointment to all Texans who stand in defense of life. 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-changing decision. I have full confidence in Attorney General Abbott's efforts to appeal this decision as he defends the laws enacted by the Texas Legislature.

Although Perry presumably disagrees with Sparks' legal analysis, it does not depend on an invented, privacy-based right to abortion. Unless Perry rejects federal judicial review of state law altogether, he has to concede that some abortion regulations would be unconstitutional even without Roe. Counterintuitively, an outright ban might be more likely to pass muster than regulations like these.