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? I am all for exemptions to otherwise-burdensome laws restricting access to abortion, but I also think these exemptions clearly expose the state’s real intent with this law (something the court refuses to acknowledge). This isn’t about informed consent. It certainly isn’t about providing women with the information necessary to make the choice. This is about forcing a doctor to make speech to change a woman’s choice. It’s about shaming women. Because, in the end, we just don’t trust women to be able to make the choice that is best for them. No, no, instead we need a state to inject its paternalistic laws to ensure that a woman makes the “right” choice, even if the laws don’t do anything to change the choice and only make the path to the choice more burdensome.
Moving on to the Due Process arguments, the court continued its dismissive attitude towards the constitutional concerns. For example, in its discussion of why the provisions were not so vague as to violate Due Process, the court noted that a “woman may simply choose not to look or listen” when her doctor shows her the sonogram, plays the heartbeat, or describes the sonogram in detail (note: the law does not allow a woman to refuse the description unless she fits one of the exceptions described above). But what’s not at all clear in the opinion is how a woman should “simply” choose not to listen. Should she put on noise-cancelling headphones, or plug her ears and say “LA LA LA LA LA”? Surely, this is not what the court meant, but whatever it did mean, it clearly ignored the reality of the law and its impact. To make everything seem so simple – ‘oh, she can just divert her ears’ – is just hurtful to women. What we are talking about here is not simple and should not be dismissed so quickly. The Texas provisions undermine constitutional rights, and do so bluntly. But when you read the opinion, it’s as if none of these issues are really happening, that all of the concerns with the law are just imagined (the court even calls one of the due process claims as “trivial”). And it is this dismissive tone that really makes this opinion so dangerous and degrading. What is going on here is that Roe v Wade, as applied by courts today, is a shadow of its former self.
In case you want a more context to the 5th Circuit opinion, read the lower court decision. Besides providing more thorough analysis, the opinion includes some colorful commentary, including footnote 2: “It is ironic that many of the same people who zealously defend the state’s righteous duty to become intimately involved in a woman’s decision to get an abortion are also positively scandalized at the government’s gross overreaching in the area of health care.” Ironic indeed – I just can’t get over the irony and its 92 state restrictions passed last year.