W.D.Tex. partially enjoins anti-abortion law

The District Court for the Western District of Texas enjoined parts of a new Texas law (the “Act”) intended to suppress abortion. The Act imposed a duty on doctors to provide information about a fetus to pregnant women before they could give informed consent to their abortion. Plaintiffs were a class of all Texas medical providers performing abortions and the patients of those providers. The Defendants were all prosecutors with authority to prosecute violations of the Act. The court certified plaintiffs and defendants as classes, and then issued an injunction against parts of the Act that it determined to be unconstitutionally vague or in violation of the First Amendment. Tex. Med. Providers Performing Abortion Servs. v. Lakey, 2011 U.S. Dist. LEXIS 97080 (W.D.Tex. 2011). Judge Sparks, nominated by President H.W. Bush, wrote the opinion of the court.

Earlier this year, the Texas Legislature passed an Act imposing new duties on doctors to provide information to their abortion patients. The Act required doctors to show sonograms to women seeking an abortion, to make the patient listen to the heartbeat of the fetus, and provide women with further information designed to dissuade them from choosing abortion. Physicians who failed to perform these duties before providing an abortion were subject to prosecution.

The court first granted the plaintiffs motion to certify the class of plaintiffs. Anticipating the defendants’ strategy, the court wrote that class certification would prevent the defendants from being able to dismiss the lawsuit through standing challenges. Additionally, the class did not have too many conflicting interests. Finally, even if class-wide injunctive relief might be inappropriate, class certification was not the appropriate time to decide. None of these concerns, the court concluded, should bar class certification.

The court next granted the plaintiffs’ motion to certify a class of defendants. The plaintiffs sought to create a class of all the prosecutors who might bring charges against doctors for violating the challenged law. Without a class of defendants, the plaintiffs would have to enjoin individual prosecutors. The court found that creating a class of defendants would allow for “comprehensive and uniform injunctive relief for all members of the plaintiff class.”

The court turned to Defendant Escamilla’s motion to dismiss the suit against him. The court rejected the motion. The court explained that it is unnecessary for each plaintiff to have standing because they are members of a class where some members have standing. Escamilla also argued that the plaintiffs should have sued the state of Texas. However such a suit would be barred by the Eleventh Amendment, and suing Escamilla, the court stated, was the appropriate way for the plaintiffs to challenge the Act.

Next, the court denied the defendants’ motion to strike physicians’ declarations the plaintiffs had entered. The court reasoned that the standards for considering the declarations were more relaxed at the preliminary injunction stage, and the declarations were properly entered.

The court then addressed the plaintiffs’ motion for a preliminary injunction to block the defendants from enforcing the Act. First the plaintiffs argued that the Act violated the Equal Protection Clause of the Fourteenth Amendment. However, abortion providers are not a protected class, and the court explained that it must uphold laws that further a legitimate interest that are rationally related to that interest. These requirements were satisfied here. The court 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 under these circumstances.” The court concluded the plaintiffs’ equal protection argument failed.

Second, the plaintiffs argued that the Act violated the First and Fourteenth Amendments by forcing women to look at and listen to depictions of a fetus against their will. The plaintiffs relied on the “right to be let alone” described in Hill v. Colorado. 530 U.S. 703 (2000). However, according to the court, the “right” is merely an “interest” that states may regulate. The court held that while there is a limit to when a state may force women to watch and listen to a particular message, the plaintiffs had not provided sufficient caselaw that the government had gone too far in this case.

Third, the plaintiffs argued that numerous provisions of the Act were unconstitutionally vague. The court rejected plaintiffs’ challenges to all but three provisions. First, a provision that imposed duties on “the physician who is to perform the abortion” was unconstitutionally vague because it was not clear how that term would apply to multi-doctor practices where doctors routinely perform different parts of abortion related services. The second vague section was a series of provisions that conflicted with each other and used language that appeared to obscure what conduct could be punishable. The final unconstitutionally vague segment of the law was a provision that required physicians to provide women with certain information once they have decided to forgo an abortion. The court agreed with the plaintiffs that the law did not explain how a physician could comply with the law or when the physician had to comply. These three provisions were the only provisions that the court found to be unconstitutionally vague.

Fourth, the plaintiffs argued that certain provisions compelled physicians to engage in speech in violation of the First Amendment. Finding the speech at issue was not strictly commercial, the court strictly scrutinized whether the restriction was narrowly tailored to serve a compelling government interest. The defendants attempted to convince the court that Planned Parenthood v. Casey, 505 U.S. 833 (1992), explicitly allowed states to require doctors to deliver a state’s anti-abortion message to plaintiffs. However the court pointed out that Casey involved an Equal Protection claim rather than a First Amendment claim, that Casey did not say a state’s interest in delivering that message was “compelling,” and that the Texas Act imposed “requirements that are both more onerous, and less medically relevant, than those in Casey.” The court concluded that the speech compelled by the Act was a much greater burden to patients and physicians than the speech contemplated in Casey, and that the compelled speech in this case violated the First Amendment.

Having decided the legal merits of the plaintiffs’ claims, the court evaluated how to craft an appropriate injunction. Applying the severability clause contained in the Act, the court imposed an injunction barring the defendant class from enforcing the parts of the Act the court found to be unconstitutional.

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