{"id":4388,"date":"2012-02-20T13:31:39","date_gmt":"2012-02-20T18:31:39","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=4388"},"modified":"2016-11-16T20:10:58","modified_gmt":"2016-11-17T01:10:58","slug":"the-fifth-circuits-troubling-abortion-ruling","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/the-fifth-circuits-troubling-abortion-ruling\/","title":{"rendered":"The Fifth Circuit's Troubling Abortion Ruling"},"content":{"rendered":"

HarvardCRCL.org is proud to post submissions from our newly selected General Board members. \u00a0The following post from one of those new members discusses the Fifth Circuit’s recent decision upholding a Texas requirement to show a woman a sonogram before she can choose to have an abortion.<\/em><\/p>\n

The United States Circuit Court of Appeals for the Fifth Circuit on January 10 upheld a\u00a0Texas law requiring doctors to show sonograms to patients seeking abortions. The decision, Texas Medical Providers Providing Abortion Services v. Lakey<\/a>,\u00a0<\/em>\u00a0functions as an\u00a0unfortunate emblem of the court\u2019s tendency to treat abortions as quasi-criminal acts rather than a legal\u00a0medical procedures and improperly infringes upon the privacy and autonomy of patients\u2019 and doctors\u2019.\u00a0The court cited the Supreme Court decision in Planned Parenthood v. Casey<\/a><\/em> (1992)\u00a0as grounds for its\u00a0judgment: \u201cStates may further the \u2018legitimate goal of protecting the life of the unborn\u2019 through \u2018legislation\u00a0aimed at ensuring a decision that is mature and informed, even when in doing so the State expresses a\u00a0preference for childbirth over abortion.\u2019\u201d . As long as required\u00a0disclosures are truthful, non-misleading, and relevant, states are permitted to impose their use as regulation\u00a0of medical practice, the court said. Information about both the fetus and the mother\u2019s health is considered\u00a0relevant. Again quoting Casey, the Fifth Circuit insisted: \u201cIn attempting to ensure that a woman apprehends the\u00a0full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a\u00a0woman may elect an abortion, only to discover later, with devastating psychological consequences, that her\u00a0decision was not fully informed.\u201d<\/p>\n

Two key ideas underlie the court\u2019s reasoning in this case: 1) the unborn are citizens of the state, and\u00a02) legislation of this kind is reasonably calculated and reasonably necessary to ensure mature and informed\u00a0decisions by would-be mothers.<\/p>\n

While the first idea represents one answer to an ongoing scientific, legal,\u00a0and social debate regarding the definition of personhood, the second encapsulates troubling assumptions\u00a0that could implicate other legal rights of doctors and women, more generally. The suggestion that a woman\u00a0visiting a doctor for the purpose of obtaining an abortion is inherently at risk for making \u2013 in the words of\u00a0the Casey<\/em> opinion \u2013 an \u201cimmature or uninformed decision\u201d is blatantly condescending to female patients.<\/p>\n

The strong strain of paternalism underlying the Texas law has manifested itself elsewhere as well in recent weeks. It has surely shown itself in the contours of a roiling national debate over health insurance coverage for contraceptives — both in the vehement response of an all-male body of religious leaders who treated the issue as a matter of religious principle without any reference to women’s health, and in the stunning display of a congressional panel on birth control at which appeared not a single woman. The same strain evident in the Texas law is also present in a new Virginia proposal which would require women to subject themselves to transvaginal ultrasounds so that they might be better “informed” of the consequences of their decisions. Like Casey <\/em>and Gonzalez<\/em>\u00a0themselves, the Fifth Circuit’s recent ruling provides troubling precedent for these types of intrusive, humiliating rituals to pass muster.<\/p>\n

The court supported its judgment by invoking both Casey <\/em>and Gonzalez v. Carhart<\/a>, <\/em>the 2007 Court decision affirming the essential holding of Casey <\/em>and asserting that a state government “may use its voice and\u00a0regulatory authority to show its profound respect for the life within the woman.” Relying on this language, the court\u00a0asserts that state\u00a0regulation of medical practice\u2014insofar as \u201cdeciding that information about fetal development is \u2018relevant\u2019to a woman\u2019s decision-making\u201d regarding an abortion\u2014is justified. It is unclear how the state is to determine relevance\u2014what support it needs in the\u00a0form of justifying scientific proof and\/or what due process should be required. Unlike decisions made by\u00a0administrative agencies, the court articulates no procedural or evidentiary requirements for rules created by\u00a0the legislature.<\/p>\n

In what other private medical proceeding are patient-doctor interactions so prescribed? The intimacy of\u00a0state involvement that courts have allowed for abortion consultations enforces the false idea that abortion is\u00a0not so much a medical procedure as it is a borderline criminal act. The court should recognize the legality\u00a0of performing medical abortions in this country and should act accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"

The United States Circuit Court of Appeals for the Fifth Circuit on January 10 upheld a Texas law requiring doctors to show sonograms to patients seeking abortions. The decision functions as an unfortunate emblem of the court\u2019s tendency to treat abortions as quasi-criminal acts rather than a legal medical procedures and improperly infringes upon the privacy and autonomy of patients\u2019 and doctors\u2019. Two key ideas underlie the court\u2019s reasoning in this case: 1) the unborn are citizens of the state, and 2) legislation of this kind is reasonably calculated and reasonably necessary to ensure mature and informed decisions by would-be mothers.<\/p>\n","protected":false},"author":1,"featured_media":4392,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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