Bench Memos

Significant Pro-Life Victory for Texas in Fifth Circuit

Yesterday the Fifth Circuit, in an excellent opinion by Chief Judge Edith H. Jones, rejected a challenge to informed-consent provisions governing abortion that Texas enacted in May 2011. The opinion faithfully applied the principles of the Supreme Court’s 1992 decision in Planned Parenthood v. Casey.

Among other things, the Texas provisions at issue provide that when a woman (or minor female) seeks to undergo an abortion, the “physician who is to perform the abortion” must first perform a sonogram, make it available for the woman to view (if she wishes), explain (except in some instances) what the sonogram shows, and (in most cases) wait 24 hours before proceeding with the abortion.

The Fifth Circuit carefully considered and rejected claims that the provisions abridge the First Amendment rights of abortion providers and are unconstitutionally vague.

In the particular procedural posture of the appeal, the Fifth Circuit only vacated the preliminary injunction that the district court had entered against various of the new provisions. But the Fifth Circuit’s reasoning dictates that the district court should grant summary judgment in favor of the state of Texas. (And in case the district court were tempted to disobey the panel’s clear guidance, the panel has expressly stated that “any further appeals in this matter will be heard by this panel.”)

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