Sonogram Law Partially Struck Down

And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about [a] government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.

-- Walter Dellinger

A federal judge ruling on a Texas sonogram law (among other things) had a similar sentiment:

In short, if the Texas Legislature wishes to prioritize an ideological agenda2 over the health and safety of women, the Equal Protection Clause does not prevent it from doing so under these circumstances.

The footnote expressing the "irony" of selective concern for government control of health care. But, as with Dahlia Lithwick today (barely worth linking) sarcastically noting that on the issue of the death penalty, government suddenly can be trusted (these aren't libertarians, no matter how many times they pretend to be), it isn't really surprising. It's annoying, sure, but not surprising. The judge, for instance, noted the "almost perverse" statement that the woman handed to sign that mandates were done via her "own free will and without coercion."

The ruling doesn't seem to address the bodily integrity burdens of unwanted medical procedures, but does note the First Amendment problems with the requirements. The physician has to say medically unnecessary things of an ideological sort and the woman has to listen (they get out of actually needing to see the sonogram)unless she is a victim of abuse, a minor that had a court bypass (why?) or the "fetus [usually it would be an embryo] has an irreversible medical condition or abnormality." This would also be permanently put in her medical records, including what category she is in. Such things, particularly for abuse victims, was deemed unconstitutional.

The judge didn't accept most of the vagueness claims but did strike down a few provisions, particularly:

If the penalty provisions were less severe, the Court might conclude otherwise, but a physician should not have to gamble his or her entire career (to say nothing of $10,000 and a criminal record) on the mere hope a judge or jury will agree with the physician’s interpretation of that phrase.

They provide various confusing or at best burdensome regulations "making it significantly more difficult for pregnant women to obtain abortions." Since Casey still recognizes the liberty interest at issue, "rational basis review requires this Court to accept even tenuous rationales for the advancement of a legitimate government interest" seems a questionable conclusion. The judge notes "grave doubts about the wisdom" of such laws, laws which put the sort of substantial obstacle in front of obtaining abortions that even looser Casey rules seems to find problematic. And, since legislators are getting smart and putting in a proviso that if parts of the law are struck down that the remainder should stand, the incentive is to over legislate in this area. Casey opens the floodgates, the limits a matter of political safeguards and judicial oversight. But, the ruling still puts some up some barriers. 

Given the passage of various new laws by the "limited government" Tea Party legislators out there, judges will be busy. For instance:

If a woman certifies she lives 100 or more miles away from an abortion provider, she may satisfy the informed consent prerequisites two hours prior to an abortion; otherwise, the Act requires they be satisfied twenty-four hours in advance.

Casey leaves open such laws to review if an "undue burden" on the right to choose an abortion is involved. I don't know how they managed that distance, but it would be quite relevant in some states, including those with one provider. Suffice to say various courts rule on these things differently, various nuances of the law sometimes taken into consideration. Forced medical procedures and ideologically based scripts best left to so-called crisis pregnancy centers (code name for anti-abortion centers, though clear labeling rules saying as such have run into court action) shouldn't be a close question.