Federal Judge Sam Sparks and the 2011 Texas Abortion Act

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Judge Sam Sparks did not have very kind words for the attorneys on either side of the challenge to the 2011 abortion Act in his opinion in Texas Medical Providers Performing Abortion Services v. Lakey.    He was also not impressed with Texas lawmakers, calling the Act the product of “an ideological agenda.”

In considering the challengers equality claim, he wrote “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 . . . .”  However, Judge Sparks found the plaintiffs’ vagueness claims and compelled speech claims more worthwhile.

He singled out the “certification” requirement for special attention:

The most troubling aspect of the required certification is paragraph (6), which reads

(6) I UNDERSTAND THAT I AM REQUIRED BY LAW TO HEAR AN EXPLANATION OF THE SONOGRAM IMAGES UNLESS I CERTIFY IN WRITING TO ONE OF THE FOLLOWING:

_____ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT, INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT HAS BEEN REPORTED TO LAW ENFORCEMENT AUTHORITIES OR THAT HAS NOT BEEN REPORTED BECAUSE I REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT RISK OF RETALIATION RESULTING IN SERIOUS BODILY INJURY.

_____ I AM A MINOR AND OBTAINING AN ABORTION IN ACCORDANCE WITH JUDICIAL BYPASS PROCEDURES UNDER CHAPTER 33, TEXAS FAMILY CODE.

_____ MY FETUS HAS AN IRREVERSIBLE MEDICAL CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE DIAGNOSTIC PROCEDURES AND DOCUMENTED IN MY MEDICAL FILE.

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 problem is newly-added section 171.0121, which requires both that a copy of the above certification be placed in the pregnant woman’s medical records (presumably permanently), and that the facility that performs the abortion retain a copy for at least seven years.  Given the nature of the certification and the Act’s retention requirements, it is 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 enjoined several sections of the Act, as discussed over on ConLawProf here.

~Ruthann Robson

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