Leila Abolfazli, Senior Counsel

The 92 abortion restrictions passed last year include a law passed in Texas requiring a doctor to show a sonogram to a woman seeking termination, make the fetal heartbeat audible, and give the woman a detailed explanation of the sonogram before the woman can obtain an abortion. These provisions were immediately challenged for several reasons, including as violating the First Amendment and Due Process, and a lower court agreed to stop the provisions from going into effect as it reviewed the constitutionality of the law. Unfortunately, the Fifth Circuit last week dismissed these concerns and decided that the law could go into effect even as the constitutional challenges continue.

In reaching its decision, the Fifth Circuit rejected arguments that the law violated the First Amendment, including that it implicated “compelling ‘ideological’ speech” (which would require a higher standard of review). Although acknowledging that the “statute’s method of delivering this information is direct and powerful,” the court just considered what Texas did as good ole’ informed consent law regulating medical practice. Yet, not every woman is required to listen to the speech, as the statute allows three groups of women to opt out of the sonogram description including a rape victim, a woman pregnant with a “fetus that has an irreversible medical condition or abnormality,” or a minor who obtains an abortion through judicial bypass procedures. If this really was about informed consent and not ideological speech intended to make women feel bad for their decision to terminate, why allow certain women to opt out of hearing the speech?