Friday, September 9, 2011

Ruling Striking Texas’ Informed Consent Law Is No Victory For Women

And when I get excited
My little China Girl says
‘Oh, Baby, just you shut your mouth.’
—David Bowie, China Girl

Last week U.S. District Judge Sam Sparks blocked key portions of a recent amendment to Texas’ Woman’s Right To Know law that provided for mandatory sonograms prior to doctors performing abortions.  By way of background, the amendment, known as C.S.H.B. 15, passed the Texas Legislature this Spring by an overwhelming—and bipartisan—2/3 majority in both houses, and was signed into law by Governor Perry.  Judge Sparks’ decision was issued in the context of a pre-emptive lawsuit filed by a New York entity called The Center for Reproductive Rights, purportedly as a class action on behalf of Texas providers of abortion services (query how such a class could possibly ever be certified, but that’s another discussion). 

Would that people in New York were as respectful of our rights as Texans to govern ourselves as our Governor is of their rights as New Yorkers to govern themselves.  So much for having the decency and respect for our political processes to rely on the legislative process to change policy, eh, Mr. Krugman? 

Judge Sparks struck provisions requiring doctors to display a sonogram image of the unborn child, make the heartbeat audible, and to describe the fetus’ dimensions, development, and activity, saying such provisions violated the First Amendment.  The CRR’s Nancy Northup hailed the decision as a “huge victory for women[.]” 

How do you figure? 

First, let’s be clear:  C.S.H.B. 15 contains absolutely nothing preventing a woman from getting an abortion in Texas if she chooses.  Contrary to the obviously political complaints contained in Judge Sparks’ order, the Act is not “onerous”—sonograms are routinely performed anyway—it isn’t going to make procedures significantly more expensive—the Act provides for making information about free sonograms available—and it is difficult to see how there is going to be a mass exodus of doctors leaving the Texas abortion market such that access to abortions is going to be materially impaired.  So C.S.H.B. 15 isn’t really about women’s “reproductive rights,” whatever those are. 

Nor does C.S.H.B. 15 impact women’s First Amendment free speech rights.  Often skipped in media coverage of the statute is the fact that the bill expressly allows women to opt out—they don’t have to see the sonogram or hear the audible heartbeat if they choose not to.  All the bill was designed to do was to ensure that the information was available to women who might not know to ask for it, and after all isn’t that what “informed consent” is all about?  

Let’s remember a point that’s often lost in this debate.  Leaving aside the fact—yes, fact—that abortion terminates an innocent human life, abortions very often take a terrible and permanent toll on the very women whose “reproductive rights” the pro-abortion movement so vociferously purports to protect.  The emotional scars left as the realization of what they’ve done sets in don’t go away.  What possible purpose is served by not ensuring that a woman at least has access to all the available relevant information before she makes a decision that either way she goes will impact her for the rest of her life? 

I repeat:  How do you figure this is a huge victory for women? 

But what about the doctors?  Doesn’t the First Amendment protect them against the government requiring them to provide certain dictated information?  You mean like requiring healthcare professionals to provide certain specific end-of-life “option” information, as was required in a version of Obamacare supported by many on the Left?  Or requiring attorneys to include certain disclaimer language in advertisements as do Texas and most other States?  Or requiring cigarette manufacturers to include certain warnings on their labels?  Or requiring restaurants—ahem, New York—to post dietary information on their menus?  Or requiring certain commercial property owners—ahem, California—to post statements that their property contains substances “known to the State of California” to cause cancer?  Government requirements that providers of goods or services give certain information or make certain statements to their customers are nothing new.      

The First Amendment was intended to ensure that people could speak out against the government.  It was never intended as a magic talisman affording absolute protection of, and shield against, all speech at all times and in all contexts.  Where the government has a legitimate interest—and in the area of abortion and informed consent the Supreme Court has said it does, see Gonzales v. Carhart and Planned Parenthood v. Casey—narrowly-tailored intrusions upon speech do not violate the First Amendment.  And it is appropriate that the burden in this instance be borne by the doctors who can be expected to know what information is available, rather than a woman who might not necessarily know that with a sonogram she could see her baby, or that it is possible for her to hear the baby’s heartbeat.  One imagines that for at least some women, that might be information relevant to her decision.  For those to whom it is not, they can easily decline the information or ignore it; but there is no recourse for those to whom it would matter but who never receive it or even know it exists. 

Bear in mind that Texas has had informed consent laws on the books—in the abortion context as well as generally—since 2003.  It’s only the addition of physical evidence and description pertaining to the condition of the unborn child that is now raising concern.  This has nothing to do with the First Amendment. 

The pro-abortion movement is absolutely terrified of anything that would illustrate the undeniable fact that what they call “the fetus” is actually a human life.  They don’t want you to see that she has a human face, and fingers and toes.  They don’t want you to hear her working heartbeat, fully separate from her mother’s.  Or maybe it’s that they themselves don’t want to have to confront the truth of what it is they advocate.  As Jodie Foster as Clarice Starling observed in Silence of the Lambs, “[i]f he sees Catherine as a person and not just an object, it’s harder to tear her up.”  So they concoct a lawsuit to prevent that information from being made available.  Translated: groups like the CRR want women to be making the decision whether to have an abortion in as ignorant a state as possible as to the actual condition and attributes of the life they carry, regardless of the possible emotional and psychological consequences that decision may have for that woman down the road.

There is no "victory" for women here.

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