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Courts uphold Texas sonogram case

February 13, 2012

Georgene Rice interviews Jonathan Saenz, attorney with the Liberty Institute who was very much involved with the Texas case that the 5th Circuit Court upheld stating that sonograms must be performed 24 hours before abortions. The case signals one of the biggest legal advancements in a decade for pro-life advocates.

Georgene: The law that was challenged was HB 15, signed by Governor Rick Perry back in May, 2011 that amended the 2003 Texas “Women’s Right to Know Act” . Tell us what HB 15 does.

Jonathan: It requires that a doctor perform a sonogram, women be given the option to look at it, and it requires that the doctor make the heartbeat audible, and give a description. If a woman choses not to look at the sonogram or hear the heartbeat, she does have that option. But, the woman must be given a description of the image, advising her how far along the woman is and what the sonogram looks like. The courts have been very clear. This is a life and death decision that many women regret later because they were not given the information. So, states have every right to make sure that every woman is fully informed of what she is getting into before she makes that decision. We know the impact that can have.

Georgene: What this law is really about is informed consent. You are required, as the patient, to be given the full range of information that relates to the procedure that you are about to be subjected to.

Jonathan: For years abortion doctors were preventing women from seeing their own sonograms. When this came before the legislative session, women were lining up to tell of their experiences in an abortion clinic.  They had actually asked to see the sonogram and were forbidden from seeing the image. Even though they were not even questioning their decision. They simply wanted to see it. So we know this is important information, and it should not be any different than any other medical procedure. It may be difficult for some of those women to hear that information, but it prevents them from coming back later, saying, “If I had only known”.

Geogene: Women now have the full range of information to inform them about the procedure they are considering. There was a lower court decision that enjoined the Texas law. So, this was a battle that had began some time back.

Jonathan: The lawsuit was filed last summer before the law even went into effect. The Texas voters had not even gotten the benefit of the law, protecting women and unborn children, before it was challenged. In the lower court, the judge wrote a very strange opinion stricking down most of the law. If you look at the Court’s opinion reversing the lower court, you’ll find they were very emphatic in using very strong and clear words, saying basically, this case should not come back to us. It is constitutional.

We primarily work on constitutional issues. We knew there would be a constitutional challenge when we were drafting this law with the assistance of great lawmakers like Representative Sid Miller and Senator Dan Patrick. Having some good Supreme Court precedent  we drafted the law based on what the Supreme Court had already said.

Abortion groups think they can file a lawsuit and think that our side will fold. You’ve got to be willing to follow through. You’ve got to be willing to go through the litigation. That way, you can have a day like today, when you can have an ultimate victory.

Georgene: There is a 24 hour time requirment as well. Was that in the original law passed in 2003, or was that a part of HB 15, which will now be the law in Texas?

Jonathan: The 24 hour requirement is new and there is now, also, a requirement that the woman have a face-to-face consultation with the doctor. There are over 80,000 abortions each year performed in the state of Texas. That is a lot of life being lost, and a lot of times women aren’t being given the right information. The Supreme Court has been very clear that the state has the right to prefer childbirth over abortion.

Georgene: When a woman is seeking an abortion, is it the abortionist who is responsible for providing the sonogram himself and is there a penalty for failing to provide the sonogram the law now requires?

Jonathan: It is the doctor’s responsibility to the person seeking the abortion to make sure the sonogram is performed and the image is made available, and the heartbeat is audible. The doctor could lose his or her license or it could be revoked or not renewed if they break this law.

Georgene: This decision came out of the 5th Circuit Court of Appeals . Will it be appealed to a higher court?

Jonathan: There is a possibility, but it is very remote because the Appeals court decision was based on Supreme Court precedent, even as recent as a 2007 decision. They may try to waste their time and money on an appeal, but I would seriously doubt that the Supreme Court would take this case because of the precedent. We are now looking forward to the law going into effect and women getting the right information, and the will of the people in that state of Texas being followed.

Georgene: Do you see other states following Texas’s example?

Jonathan: I do. We’ve already gotten a call from people in other states looking for the opportunity to implement  this type of informed consent across the country. The 5th Circuit Court of Appeals also relied upon another Court of Appeals as well, so you are seeing courts across the country having to deal with this. The Court has made it known, that that is a legimate state interest and more times than not are siding with the state’s legislation as long as they do it within the bounds of the constitution, which is what happened here.

  
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