On Monday the National Law Journal’s Supreme Court Insider featured an interesting piece by Michelle Olsen discussing a recent development in the legal battle over abortion, which may land itself before the Supreme Court “[i]n a matter of days.” The article, “Circuit Split Watch: A New Abortion Battleground,” examines an emerging division among federal courts over the question of “whether states can require doctors to perform ultrasounds on women seeking abortion, and to display and describe the fetal images to them.”
The article provides a brief overview of the early percolation of this issue:
A. U.S. District Court for the Middle District of North Carolina
In Stuart v. Huff, Judge Catherine Eagles of the U.S. District Court for the Middle District of North Carolina preliminarily enjoined the state’s “speech-and-display” ultrasound requirement based on the First Amendment’s protection against government-compelled speech and her finding that the law served “no medical purpose.” No. 1:11-cv-804 (M.D.N.C. Dec. 12, 2011) (amended mem. op.).
B. Fifth Circuit
In Texas Medical Providers Performing Abortion Services v. Lakey, however, Chief Judge Edith Jones upheld Texas’s similar mandatory ultrasound law, explaining that the “disclosures of a sonogram . . . and [its] medical descriptions are the epitome of truthful, non-misleading information.” No. 11-50814 (5th Cir. Jan. 17, 2012).
C. What’s next?
The article, which is now available over at Appellate Daily, goes on to speculate that the “the Supreme Court may decide to review the ultrasound question” sooner rather than later “because of its nationwide importance.”
The parties in Lakey must file their cert. petition with the Supreme Court this month so we may soon find out if the Supreme Court believes this issue is ripe for review.