*1 570 justify

sufficient to reversal district hold that sentence

court.”76 We Sanchez’s substantively unreasonable.

is not

[*] ^[*] ^[*]

AFFIRMED.

TEXAS MEDICAL PER- PROVIDERS SERVICES, a

FORMING ABORTION represented Metropolitan

class OB-

GYN, P.A.; behalf of itself and its seeking abortions,

patients doing busi- Reproductive

ness as Services of San Antonio; Braid, Alan on behalf of Higginbotham, Patrick E. Judge, Circuit patients seeking himself and his abor- concurring opinion. filed tions, Plaintiffs-Appellees,

v. LAKEY,

David Commissioner Department

Texas of State Health

Services, capacity; in his official Mari

Robinson, Executive Director of the Board,

Texas Medical in her official

capacity, Defendants-Appellants.

No. 11-50814.

United Appeals, States Court of

Fifth Circuit.

Jan. 76. United. York, (2010). v. F.3d States 361-62 L.Ed.2d cert, (5th Cir.), denied,-U.S.-, *2 Institute, TX, Plano,

ty Legal Mar- Walter Weber, tin for Law American Center & Justice, Samuel Brown Gen. Coun- *3 sel, DC, Washington, Allan Edward Par- Jr., Foundation, ker, Antonio, San Justice TX, Goodman, Kathleen Cassidy A. Law Goodman, Cassidy Office Kathleen He- lotes, TX, G. Gary Kreep, United States Foundation, Ramona, CA, Justice Ami- for ci Curiae. JONES, Judge,

Before Chief SMITH, HIGGINBOTHAM and Circuit Judges. JONES,

EDITH H. Judge: Chief Physicians providers and abortion —col- lectively representing all similarly situated Texas Medical Performing Providers (“TMPPAS”) Abortion Services —sued Department Commissioner of the Texas Health State Services and the Executive (col- Director of Texas Medical Board State”) lectively “the under 42 U.S.C. § declaratory injunctive for relief against alleged constitutional violations re- Julie Rikelman (argued), Bonnie Scott sulting newly-enacted from the Texas Jones, Reproductive for Rights, Center (“the Act”), Bill House “relating an Act Legal Program, U.S. Joseph Alexander to informed consent an abortion.” H.B. Lawrence, Levitt, A. Jamie Morrison & 15, (Tex.2011). Leg. Reg. 82nd Sess. The Foerster, L.L.P., City, New York Richard granted injunc- district court preliminary L.L.P., Alan Grigg, Spivey Grigg, Aus- & provisions tion against violating four for tin, TX, Hays, Ronquil- Susan Lea Godwin the First Amendment and three others for lo, P.C., Dallas, TX, for Plaintiffs-Appel- conclude, vagueness. unconstitutional We lees. contrary court, Appel- to the district (ar- Mitchell, Jonathan Franklin Sol. lees failed to establish a substantial likeli- gued), D’Andrea, Arthur Cleveland Office hood of success on of the claims on Texas, of the Sol. Gen. for the State injunction granted, which was Austin, TX, for Defendants-Appellants. therefore in- preliminary VACATE the Layton Schlafly, Hills, junction. NJ, judicial Andrew Far For the sake of efficien- Linton, Benjamin Northbrook, IL, Paul cy, any appeals further in this will matter Jeffrey Mateer, Counsel, Carl Gen. Liber- be panel. heard 13, request- filed suit on June

Background shortly ing preliminary injunction there- substan- passed May H.B. Following briefing, the after. extensive the 2003 Texas Woman’s tially amended enjoined preliminarily district court (“WRKA”). Act to Know Right provisions disclosure Act described challenged here intended amendments ground they on the “compel above the informed consent strengthen in violation of the First Amend- speech” to undergo who choose abortions. women enjoined partially ment. The district court require amendments void three other sections of Act as perform perform “who is to abortion” *4 phrase physician the “the vagueness: who fetus, make display sonogram and of the abortion,” perform to the certain situa- is of fetus the heart auscultation the audible the tions in which district court viewed the hear, her explain woman to and to for the rights obligations physician the and procedure of to wait the results each conflicting, the woman as pregnant hours, cases, these most between against the physicians enforcement of Act the performing disclosures and abortion. failing provide for to informational materi- 171.012(a)(4). Safety § Tex. Health & Code know they als when do not that woman may images the A decline to view woman to have an abortion. elected not (c), heartbeat, 171.0122(b), § or hear an explana- to receive but she decline appealed The promptly sought State images on certi- sonogram tion of the stay pending appeal, which the district falls one of pregnancy that her into fication panel A court denied. motions this Id. statutory exceptions. three court carried with the case the motion to 171.0122(d). § stay preliminary enforcement of the in- junction, also expedited but ordered brief- seeking abortion must Any woman argument. ing oral indicating she complete also a form that materials, un- has received the requisite her right derstands view Stay Appellate Review auscultation,

images and hear heart urge this court to defer Appellees to receive an abortion. chooses preliminary injunction ruling on the be 171.012(a)(5). § who is to has, court notwithstand cause district copy perform the abortion must maintain a proceeded toward ing appeal, apace this form, years. seven generally of this summary It is judgment. consideration of 171.0121(b)(l)-(2). § Id. at our on this interlocu ruling contended that If chooses not to ultimately a woman would moot if the tory matter become must receive first, judgment court enters final district publication discussing provide her with a court and that the district will resolve how and secure child paternity to establish prelimi or at the issues not raised decided § support. 171.0123. First, phase. nary We decline defer. to the ruling guidance Oc- will offer dis Finally, Act amended Texas court, important deny physi- particularly trict which cupations Code to or revoke a our view of case. Sec provisions. given these different violating cian’s license for 164.055(a). ond, went the unresolved issues below § Act Tex. Occ.Code 2011, Third, secondary importance. into and was September effect that issues pertinent Octo- do not assert fact apply abortions after scheduled developed. insufficiently ruling our remain ber Review to the play sonogram images Standard woman of her fetus, heartbeat, make audible its and ex- preliminary “To be entitled to a to her plain the results of both exams. (1) injunction, applicants] must show a information, contend, they This is the [they] pre substantial likelihood will “ideological message” concerning state’s (2) merits, vail on the substantial threat fetal pur- life that serves no medical [they] irreparable injury will if suffer pose, and no purpose indeed other than to (3) injunction granted, is not [their] discourage Requiring the abortion. injury outweighs threat substantial certify physician’s woman to compli- party [they] ened harm to the whom seek procedures ance these allegedly also (4) enjoin, granting preliminary right violates her “not to In speak.” fash- injunction will not in public disserve the ioning their compelled First Amendment Ass’n, terest.” Inc. v. Water Bluefield speech arguments, which the district court Miss., Starkville, City 577 F.3d largely accepted, Appellees (5th must confront Cir.2009) (internal 252-53 citation Supreme holding Court’s in Planned omitted). repeatedly “We have cautioned *5 Pennsylvania Parenthood Southeastern preliminary injunction that a is an extraor of 833, Casey, 2791, v. 112 505 U.S. S.Ct. 120 dinary remedy grant which should not be (1992), 674 L.Ed.2d that reaffirmed a party seeking ed unless the ‘clearly it has process right woman’s substantive due persuasion carried the burden of on all a pregnancy upheld terminate but also requirements.’” four Id. Lake (quoting informed-consent precisely statute over Diesel, Charles Inc. v. Gen. Corp., Motors same “compelled speech” (5th challenges 192, Cir.2003)). 328 F.3d 195-96 An Following here. Casey, made an en banc of “absence likelihood of success Eighth decision of the Circuit has also merits sufficient to make the district upheld against compelled speech attack grant preliminary court’s of a injunction provision another informed consent regu- improvident as a of matter law.” Lake lating abortion providers. Planned Par- Diesel, Charles Corp., Inc. v. Gen. Motors Minnesota, Rounds, enthood et al. v. 192, (5th Cir.2003). 653 328 F.3d 203 We re (8th Cir.2011).1 662 begin F.3d We legal respect view conclusions made with analysis Casey. preliminary injunction to a grant de novo. Ass’n, Water 577 F.3d at 253.

Bluefield The law at issue in Casey provider abortion to inform the mother of Discussion the relevant health risks to her I. First Amendment “probable gestational age of the unborn Appellees contend that 881, H.B. 15 child.” 112 505 U.S. at S.Ct. abridges their by First rights Amendment at certify 2822. The woman also had to in compelling writing take and dis- that she had received this informa- Rounds, defendants) (affirmed 1. See Planned Parenthood Minn. v. part, favor of in re- (D.S.D.2005) F.Supp.2d (granting 375 part); 881 versed Planned Parenthood Minn. v. (vacated); Rounds, preliminary injunction) (8th Cir.2011) (revers- Planned 653 662 F.3d Minn., N.D., Rounds, grant Parenthood S.D. v. ing summary judgment 530 of in favor of (8th Cir.2008) (en banc) (vacating F.3d 724 plaintiffs remanding) on all but one claim grant injunction (vacated preliminary Minn., part); of and remand- Planned Parenthood Minn., N.D., N.D., S.D, Rounds, ing); (8th Planned Parenthood S.D. v. v. 662 1072 F.3d Rounds, (D.S.D.2009) Cir.2011) F.Supp.2d 650 panel's 972 (vacating par- affirmance of (granting partial summary judgment summary judgment plaintiffs in favor tial in favor of plaintiffs partial issue). of summary judgment granting rehearing en banc on that

575 expresses preference doing so the State by the doctor been informed had tion and over abortion.” Id. for childbirth mate- availability printed of various of “describing providing the fetus rials plurality peti- then turned to assistance about medical information tioners’ support

childbirth, about child information right First Amendment of a asserted father, agencies list of and a from the provide information and other services adoption provide which of and child- about risks Id. Planned birth, by alternatives to abortion.”2 as in manner mandated sure, all these To the physician’s Parenthood contended state. be First discourage rights speak are im- abortion Amendment operate to disclosures Wooley Maynard, see v. 430 plicated, and, deliver compelling the doctor to by 705, L.Ed.2d 752] 97 S.Ct. [51 U.S. them, First physician’s violated the (1977), part practice but as free-speech rights. Planned Amendment medicine, subject licensing to reasonable strict urged application Parenthood State, by the regulation Whalen ef. First governing certain scrutiny test 589, Roe, v. 429 U.S. Brief speech rights. See Amendment (1977). We no 64] L.Ed.2d see [51 Petitioners, at WL *54. infirmity require- in the constitutional opinion Casey plurality’s concluded physician provide the in- ment entailing giving provisions, that such “the the state formation mandated here. truthful, nonmisleading information” 884,112 at 2824. Id. *6 decision,” ... to the did which is “relevant response compelled plurality The an burden on the wom- impose undue clearly scrutiny claim is not a strict speech and thus to an abortion were right an’s It analysis. inquires compel- into neither by the Amendment. permitted Fourteenth tailoring. nor ling interests narrow 882, require- at 112 S.Ct. at 2823. The Id. sentences with which the Court dis- three relay probable ment that the are, of the First claims posed Amendment legitimate age of the fetus furthered anything, of strict scruti- if the antithesis “ensuring] appre- a woman of that end Indeed, plurality references ny. of her deci- consequences hend full Roe, v. in which the Court had Whalen words, In “informed other sion.” Id. practice of regulation medical upheld in narrow not be such choice need defined privacy challenge. 429 against right 589, of effect 869, all considerations 64 terms that 97 S.Ct. 51 L.Ed.2d U.S. (1977). only at of reading are made irrelevant.” Id. reasonable fetus rights is that 883, Casey’s passage physicians’ not- 112 at 2824. As Court S.Ct. are, speak prac- when “part not to ed, legiti- “furthers the such information medicine, subject to reasonable li- tice of reducing the risk that purpose mate regulation by the censing State[.]” abortion, only to dis- may elect woman that is “truth- applies This to information later, devastating psychological with cover ful,” ... “nonmisleading,” and “relevant was not that her decision consequences, undergo an abortion. Ca- the decision” 882,112 2791. fully Id. at S.Ct. informed.” 882, at at 112 S.Ct. sey, 505 U.S. “legitimate goal further the may States through the life of the unborn” in v. protecting The Court’s decision Gonzales Car 1610, hart, 124, ensuring 127 167 “legislation aimed a decision 550 at U.S. (2007), informed, Casey, it reaffirmed as L.Ed.2d that is mature even when development. explanation prenatal description by month fetal included a month 2. The impose role ... do not undue upheld “significant state’s. burden on the profession” regulating the medical right woman’s to have an abortion are government may that use added its “[t]he permissible they truthful, require if non- authority to regulatory voice and show its misleading, relevant disclosures. Sec- within the life profound respect for ond, part such rea- laws state’s woman.” 550 U.S. at 127 S.Ct. at regulation sonable practice medical 1633. The Court addressed detail the do not fall under rubric of compelling regulations justification for state consis- “ideological” that speech triggers First reaffirming Casey’s right with tent Third, scrutiny.3 Amendment strict “rele- abortion: may vant” informed consent entail not Whether to have an abortion requires physical psychological risks painful a difficult and moral decision. expectant facing mother this “difficult While we find no reliable data to meas- decision,” moral legiti- but also the state’s phenomenon, ure the it unexcep- seems mate “protecting potential interests in tionable to conclude some women life within her.” 505 U.S. at regret come to choice to their abort the they infant life once created and sus- 2791. See also 505 U.S. at tained. depression Severe and loss of (“Nor 112 S.Ct. at can it be doubted esteem can follow. considering most women an abortion In a fraught decision so with emotion- impact would deem the on the fetus rele- consequence al may prefer some doctors vant, if dispositive, to the decision. In precise not to disclose details of the attempting appre- to ensure that a woman used, confining means that will be them- consequences hends the full deci- her selves to the required statement of risks sion, pur- the State furthers the legitimate procedure entails. From one stand- pose of reducing the risk that a woman point ought not to be surprising. elect an only to discover Any number of patients facing imminent later, devastating psychological conse- surgical procedures prefer would not to *7 quences, fully that her decision was not details, hear all lest the usual anxiety informed.”) Finally, the that possibility preceding procedures invasive medical “might such information cause the woman become the more intense. likely This is to choose over childbirth abortion” does the case with procedures the abortion not render provisions at the here issue unconstitutional. [partial-birth abortions]. 889,112 Id. at at 2791. ---- interest in respect State’s by life is the dialogue advanced that Fortifying reading, the Eighth Cir- political better informs legal the and cuit sitting en Casey banc construed and systems, profession, the medical expec- way: Gonzales in the same mothers, tant society and as a whole of consequences that follow from a de- ... the State cannot an compel [W]hile cision to elect a late-term abortion. individual to simply speak the State’s (citations 157-59, omitted). at Id. 1633-34 ideological message, regu- it can use its latory authority require to of to import these cases is First, truthful, clear. provide informed consent laws that infor- non-misleading 872, 3. But see philosophic great 505 U.S. at arguments 112 S.Ct. are social and of (“Even stages 2791 pregnan- in the earliest weight brought that can be to bear in favor of cy, the State regulations rules and enact term[.]”). continuing pregnancy to full designed encourage her to know that there

577 inherently depictions are truthful and patient’s relevant to a decision rate mation non-misleading by disputed Appel- is not an even have if informa- lees, encourage by analysis by nor might patient any also reasoned tion (We Ap- over abortion. court.4 consider later the choose childbirth district pellees’ argument that the disclosures are Rounds, Parenthood Minn. v. Planned medically necessary, and are therefore banc) (8th Cir.2008) (en 530 F.3d the woman’s in- procuring “irrelevant” added). Significantly, (emphasis Casey). formed consent under Unlike agreed dissent the state’s Rounds Rounds, in Casey Appel- plaintiffs regulation of abortion reasonable medical “ do lees here not contend that the H.B. ‘legitimate its assertion of inter- includes inflict an unconstitutional un- disclosures in the health of the mother and ests ” due due burden a woman’s substantive life protecting potential within her.’ right process to obtain abortion. These Rounds, J., dis- (Murphy, 530 F.3d at 741 omissions, together, significant. If the senting) (quoting Casey, U.S. at are truthful non-mislead- disclosures 2791). upheld, against Rounds 112 S.Ct. they if wom- ing, and would violate the challenges, informed speech compelled privacy right Casey plurali- an’s under provision, compli- and associated consent would, ty opinion, by then means certifications both the ance claim, of their First Amendment essential- alia, woman, requiring, inter pregnant trump Casey the balance struck be- ly abortion “will termi- disclosure that the rights pre- tween women’s the states’ whole, separate, unique, the life nate however, rogatives. Casey, rejected living being” human with whom the woman rights such clash informed con- relationship” existing “has an entitled sent context. Rounds, 530 at 726. legal protection. F.3d 15 the Applying principles In contrast to the disclosures discussed H.B. Rounds, taking most con- requires Casey’s plurality, H.B. 15 reasonable displaying sonogram, uphold provisions the heart clusion is to declared compelled speech by fe- pregnant auscultation woman’s as unconstitutional tus, by the To obvious description and a doctor of the district court. belabor the medically conceded point, exams’ results. That these accu- and disclo- times, politically Id. 4. At the district court characterizes abhorrent.” "ideological,” but *8 these disclosures as at 1434. The distinction the Court there Speech the term. is court misunderstands sought employ to infor- was between factual ideological "relating con- when it is to or positions arguments. mation and moral or "of, to, relating with or cerned ideas” or Though may questions there be at the mar- ideology.” "ideological,” www. based on See surely description gins, photograph a of mirriam-webster.com/dictionary/ideological. purest its features constitute the conceivable course, any may ideas in Of fact "relate” to expression of If the "factual information.” useless, in sense so loose as to be but some sonogram changes a mind about woman’s it, Wooley in "ideo- the sense which discusses possibility whether to have an abortion —a speech conveys a logical” speech which is may says which the effect of be Gonzales 715, Wooley, "point view.” at of See 430 U.S. permissible conveyance knowledge, of Gon- ("Here we at 1435 ... are faced 160, zales, 550 at 127 S.Ct. at 1634—-that U.S. which forces an individual a state measure new a function of the combination of her is fostering public ... to be an instrument ("values” knowledge "ideology” and her own ideological point to of view he adherence an term), any “ideology” inher- a better not of is unacceptable.”). speech Wooley in finds in the she has learned about ent information point a of view that the was the statement of religiously "morally, ethically, the fetus. plaintiff found heartbeat, from constitutionally the fetal fers informed-consent sonogram, sures of a in descriptions epit- general. are the certifications and their medical truthful, non-misleading informa- ome of Nevertheless, the district court was es- kind, in They different al- tion. are not that, pecially by requirement troubled scientifically up- more though graphic to the description sonogram avoid to-date, in than the disclosures discussed images, rape might victim of or incest of Casey probable gestational age the fe- — certify victim, have to her status as showing a printed baby’s tus and material despite fearing (by very terms general prenatal development stages. certification) physical reprisal if she makes Likewise, the of these disclo- relevance system her status known. This certified informed consent is securing sures to sus- exceptions be choice of debatable Gonzales, by Casey tained because it policy, transgress does not the First but regulate both cases allow the state to med- If State properly Amendment. could by deciding ical practice that information grant any exceptions decline to to the in- about is development fetal “relevant” to a requirement, formed-consent it cannot cre- decision-making.5 woman’s an inappropriate speech ate burden on free form, that, rights As for the woman’s consent it an simply excep- where conditions too, governed by approves is which tion on a woman’s she admission that falls Indeed, practice obtaining written consent within infirmity it. such an could procedure.” just by “as with medical 505 U.S. as well be down striking cured exceptions at H.B. striking 2823. alone as down the 171.012(a)(5), § requires a pregnant requirement of written certification. Be- certify writing general valid, woman requirement her understand- cause the we (1) ing objection Texas law requires ultra- see no constitutional to certi- (2) prior obtaining sound required fication for an exception. option she the sonogram has view Notwithstanding application the facial (3) images, the option she has to hear the Casey H.B. characterize (4) heartbeat, fetal she is requirements its disclosure “qualitative- as explanation hear the medical sono- First, ly ways. different” two the dis- gram unless falls she under narrow closure of the sonogram and fetal heart- requirement.6 exceptions “medically unnecessary” beat are to the To invalidate beyond the written consent form woman and therefore the standard as compelled speech potentially practice would sub- within reg- medicine the state’s ject scrutiny ulatory strict host of other medi- powers. Appellees refer to cur- requirements. cal Ap- rently required informed-consent disclosures of health risks pellees theory have no apparently offered how the to the mother alone would H.B. 15 informed-consent certification dif- limit information about the fetus these argument, Appellees' reported reasonably At oral counsel con- because the woman risks *9 objection ceded that have no to the resulting bodily injury, retaliation in serious requirements perform that a doctor and make (2) taking advantage judicial by- a minor of sonogram images the available of fetus. pass procedures parental to avoid notifica- objection requiring "display” Their is to a tion, (3) a or fetus with an irreversible medi- explanation images. of the oral abnormality. seeking cal condition or If to description images, sonogram avoid the of the (1) exceptions pregnancy 6. The three are as a excep- the woman must indicate within which rape report- result of or incest which has been tion she falls. or, if reported, ed it has been not was not the information. In gestational providing to decide than “probable its circumstances event, ig- any Appellees’ argument the approved Casey. specifically age,” as Gonzales, Casey nores as noted that any information about the more Requiring above, that of the emphasize gravity by the advocacy to state. amounts fetus subject of informed may decision be Second, Casey only whereas factual, detail, through consent medical make materials about physician to certain relevant, that the condition of the fetus is “available” to the fetus childbirth an ac- discouraging and that abortion is woman, required to here is ceptable of mandated disclosures.8 effect sonogram of and fetal the results explain auscultation, woman and the is re- heart point, perhaps, Appellees’ More to the is sonogram to quired to listen results. doctor, requires concern that H.B. 15 a at interchange makes the This minimum, patient to converse with state, for again of the medi- “mouthpiece” as a to se- sonogram predicate about the unnecessary Appellees’ po- reasons.7 cally consent, curing informed rather than show to the facts of sition seems assume way her the to or similar obtain brochure ceiling a constitutional for Casey represent Certainly, written information. the stat- abortion, of informed consent regulation delivering ute’s of this information method principles applied of to be to the not a set of powerful, is direct and but the mode this legislative decisions. On broad states’ delivery a constitutionally not make does however, level, admonished Court has significant from difference the “availabili- repository courts not the that federal Casey. ty” provision Casey plurali- The of of regulation practice medicine. ty opinion this issue in the places squarely Gonzales, 157-58,127 regulation prac- See U.S. context of the of medical tice: at 1633. prior that as Our decisions establish objections,

Turning Appellees’ specific procedure, medical the State sonograms of the fetal provision may require give a woman to her writ- in preg- are routine measures heartbeat [ci- ten informed consent They are as nancy today. medicine viewed respect, In this tation omitted] “medically necessary” for mother unexceptional. is Petitioners statute if one Only assumes conclusion fetus. of in- challenge the statute’s definition argument, pregnancy is Appellees’ because it includes formed consent terminated, be can as- one condition by the provision specific information that such information about the fetus sume doctor ... medically point is of in- irrelevant. patient consent laws is to allow formed why her and render her no reason the State

to evaluate condition We also see require under circumstances. to inform a decision difficult doctors best seeking an of the avail- up her to date medical informa- woman abortion Denying ability eonse- relating materials to the ability of an to her tion is more abuse point to note ques- perspective 8. on this Appellees and court also Another the district Gonzales, why Casey Appel- add these disclosures tion H.B. had to what that under existing Casey-like requirements to the medically necessary lees does think is necessity legisla- or wisdom cabin, WRKA. tion, legitimate power, the under the state’s course, committed is decision medicine, regulation Casey as holds. representatives elected and thus be- peoples’ *10 apart purview the from yond the courts— constitutionality the law. 580

quences [analogizing to the fetus.... specificity. bitions—with some U.S. v. bearing informed consent on the donor Williams, 285, 304, 553 U.S. 128 S.Ct. recipient kidney as well as of a trans- 1830,1845,170 (2008). L.Ed.2d 650 “[T]he plant.] void-for-vagueness requires doctrine” 881, Casey, 112 505 U.S. S.Ct. at 2823 proscription states articulate a “with suffi- added). (emphasis Casey analyze did not cient ordinary definiteness that people can the doctor’s status based on pro- how he understand prohibited” what conduct is “specific vided information.” Similarly, in providing enough objective while metrics Wooley, Appellees’ the font of compelled that it encourage “does not arbitrary and speech argument, the New Hampshire discriminatory Gonzales, enforcement.” auto required owner was not to speak 149, 550 U.S. at 127 S.Ct. 1610. “The Die,” “Live Free or merely he was re- degree of vagueness that the Constitution quired display phrase on his license ... depends part tolerates on the na- plate. compelled The mode of expression enactment,” ture of the greater toler- relevant, is not constitutionally itself ance for statutes imposing penalties civil Here, although the context is. the context tempered by and those scienter require- regulation is the of informed consent ato Village ments. Estates v. of Hoffman procedure. medical The constitutional ir- Estates, Flipside, Inc., 455 U.S. Hoffman relevance of the verbal nature of this de- 489, 498-99, 1186, 1193, 102 S.Ct. 71 scription given is even clearer the facts of (1982). L.Ed.2d 362 Casey; upheld the law there doc- verbally tors to describe the fetus’s gesta- As we are “[condemned to the age, tional a description which Casey words, use of we can expect never mathe plurality acknowledged was relevant matical certainty from our language.” “informed consent” only in a sense broad Colorado, 703, 733, Hill v. 530 U.S. 120 enough to potential include the impact on 2480, 2498, (2000) 147 L.Ed.2d 597 Casey, 883, fetus. 505 U.S. at 112 (quoting Grayned City v. Rockford, 408 S.Ct. at 104, 110, 2294, U.S. 92 S.Ct. 33 L.Ed.2d reasons, For all these we conclude that (1972)). analysis Our therefore cannot provisions enumerated of H.B. 15 re- upon focus the marginal cases in which an quiring disclosures and written consent are ordinarily plain statutory command can sustainable under are within the yield nonetheless some mote of uncertain power State’s to regulate practice ty. “[Speculation possible about vague medicine, and therefore do not violate the ness in hypothetical situations not before First Amendment.9 Appellees have not will not support [c]ourt a facial attack demonstrated a likelihood of success on on a statute when it surely is ‘in valid justifying merits preliminary in- junction. majority vast of its intended applica ” Hill, 733, tions.’ 530 U.S. at 120 S.Ct. II. Vagueness (internal omitted); citation see also Ass’n, Douds,

The Due Am. requires Process Clause Commc’ns C.I.O. v. states define 382, their prohi- enactments —and U.S. 94 L.Ed. Casey court, 9. That principles state compelled speech Gonzales constitu- enough encompass broad the H.B. tionally permissible 15 dis- "pure in the context of closures and informed speech.” consent certificate commercial The statement is clear- overbroad, necessity eliminates Appel- ly to rule on the analyze but we need not it fur- argument, adopted lees’ earlier by the district ther.

581 (1950). summarily merely “argu- it as “the ele- dismissed must remember We 925 “binding interpretation” con- Absent a every rule reasonable ment.” mentary to, in to is to phrase physician resorted order of the “the who must be struction abortion,” unconstitutionality.” the disre- court perform a statute from save Gonzales, 1610. at State’s construction. garded 550 U.S. physician when enjoined penalizing a court under penalties are aware that We physicians any one or combination of has evidently scienter require do not the law complied requirements. with the disclosure in or non-licensure and result revocation criminal sanc- potential physician, disagree with the district We do sufficient abortion without tions result, that is we con- court’s but because also that the We note informed consent. by is compelled clude that same result out of accepted court three district statutory language requiring compli- challenges by vagueness raised multiple is by physician “the who to perform” ance por- turn to the three Appellees. We multiphysician practices, In the abortion. enjoined H.B. court 15 the district tions more sched- this could necessitate careful unconstitutionally vague appli- in some as uling sonograms disclosures cations. to prior procedure. hours But it is gram- also reasonable to construe the law perform “The who is to physician A. matically allowing compliance by as the abortion” who or “is physician “intends” intended” court first concluded district perform, even if unforeseen circumstances per physician who is phrase “the actually in the being per- result abortion’s “unconstitutionally the abortion” was form construed, by a formed substitute. So regard vague under circumstances” some provision vague. is making ing timing Moreover, other cases have addressed (6). 171.012(a)(1), (4), (2), (3), § disclosures. doctor, seem- appellations identical most The State asserts that abortions See, legal challenge. e.g., without ingly by physician, and that single performed physician perform “the is Casey: who more than in the rare circumstances where 902, 112 Casey, 505 U.S. at the abortion.” involved, by physician compliance is one Rounds, In 2791. South Dakota physicians any physician or combination of upon phy- also duties “the imposed statute of H.B. requirements satisfies abortion,” is perform sician who Thus, applies the statute “the incurring legal a distinct again without physi perform,” is to rather than who Rounds, F.3d 726-27. challenge. Appel performs,” “who the abortion. cian 4902899; Appellants, Brief WL See lees, contrast, physicians insist Appellees, Brief of 2005 WL 4902901. substan practices would face multi-doctor argument is novel does not Appellees’ That uncertainty tial under this definition: it, novelty suggests but weak- defeat its more doctor collaborates when than one ness. abortion, it is unclear who perform perform is to the abor “the who B. between Section Conflict challenges a similar tion.” raise 171.012(a)(A) and Section 171.0122 “filling colleagues in” for for doctors performing abortions. further concluded Sec- The district court 171.012(a)(4) in con- and 171.0122are acknowledged tions

The district court flict, resulting constitutionally intoler- then position was reasonable —and State’s *12 son, a uncertainty. explana- able relevant sections simultaneous verbal (em- tion of auscultation]!] the heart provide respectively: added.) phasis Voluntary and Section 171.012. Informed Viewing Section 171.012. Printed Materi- Consent Sonogram Image; Hearing als and Heart (a) voluntary an abortion is Consent to Explanation Auscultation or Verbal if: informed (a). pregnant may A woman choose not to view printed [provided materials (4) ... hours before the at least by section]. another least two hours abortion or at before (b) A pregnant may woman choose not pregnant if the woman abortion sonogram images required view the requirement waives this ...: provided be to and reviewed with (A) who physician perform is to pregnant woman under Section agent phy- the abortion or 171.012(a)(4). also a sonographer sician who is (c) A pregnant may woman choose not aby registry certified national to hear the heart auscultation required sonographers performs medical a provided to be reviewed with the sonogram pregnant woman pregnant woman under Section per- on whom the abortion is to be 171.012(a)(4). formed; (d) A pregnant may woman choose not (B) who physician perform is to explanation receive the verbal of the displays sonogram the abortion sonogram images results of the ... if images quality in a consistent with exceptions [she satisfies of three one practice current medical in a man- subject to documentation]. pregnant may ner that the woman (e) The physician pregnant and the them; view subject woman are to a penalty un- (C) who physician perform is to chapter solely der this preg- because the provides, abortion a manner nant woman not to chooses view the to a layperson, understandable a printed or the sonogram materials im- explanation verbal of the ages, auscultation, results of hear the heart or re- sonogram images, including explanation, ceive if the verbal waived as description medical of the dimen- provided by this section. fetus, embryo sions of the or The district noted court that the intro- presence activity, of cardiac and the 171.012(a) duction to Section nominally

presence of external members and broaches no exceptions, because a woman’s internal organs; consent to an abortion informed and (D) who perform voluntary only is to if a physician complies with agent phy- requirements. abortion or its The court then ob- sician also a sonographer who is served that 171.0122 exempts Section registry pregnant certified a national women from several of these re- quirements medical sonographers by providing makes audi- what the preg- do, ble may the heart auscultation for the nant woman rather than under hear, pregnant present, woman to if what circumstances need not (a)(4)’s quality comply requirements. consistent with current (cid:127) practice provides, provisions medical district court together read the layper- intending, succeeding, manner understandable to a as but create 171.012(a)(4) Thus, a exception. pregnant and an woman requirement 171.012(a)(4)(A) complies with the disclosures not waive: Section doctor who *13 (§ 171.012(a)) may physician agent lose his license even states that the or his must perform sonogram. decided not to view the though the woman the fetal heartbeat sonogram or hear complements Section 171.0122 this lan- 171.0122). (§ court discount- The district guage expressly reserving every 171.0122(e), ed the text of which states pregnant rights woman the unconditional preg- physician that neither the nor the sonogram images to refuse to view the or “solely penalized nant woman would be heartbeat, and, hear the fetal if she falls pregnant the woman chooses” not because into of the three exceptions, one the addi- results, sonogram hear her to view tional right physician’s not to hear the auscultation, heart or receive a ver- child’s explanation sonogram images. of the Tak- physician. from her explanation bal together, physician’s en duties are “solely” as constitu- court viewed the word “reasonably physician more than clear”—a tionally “legislative ‘gotcha’tac- intolerable intending perform an abortion must so- sum, In tics.” the court severed word woman, nogram the display appropri- 171.0122(e) “solely” from Section for en- images, auscultation, ate obtain a heart enjoined purposes, forcement and further explanations and tender verbal unless provisions against phy- of the enforcement (for sonogram explanation refused display sonogram for im- failure to sicians alone) pursuant to one of the exceptions ages or make audible heart auscultation 171.0122(d). listed Section The woman pregnant results whenever woman seeking may an abortion elect not to at- former elects not to view the or hear sounds, images, tend to these or in some latter. cases, explanations. This election does not physician’s obligations obviate dis- in skeptical The district court’s play sonogram images or make audible 171.0122(e) follows terpretation Section auscultation; may the heart the woman disputed provisions from its belief that the simply choose not to look or listen. represent pair do not a harmonious court, regulation exception. disagree. perceive We Unlike the district we no 171.012(a)(4) vagueness in exempting physician Section establishes what the from regulatory consequences “solely various physician sonogram per must do: have formed, display sonogram images, per partici- because” the woman elected not auscultation, § 171.0122. provide pate form a heart ver the disclosures under explanations sonogram images Eliminating “solely” means that “whenev- bal election, heart The district er” a woman resorts to this auscultation. (a)(4) analysis ignores physician consequences court’s that the faces no adverse flouting from altera- physician’s obligations unconditional the disclosures. This they tion merely display images encourages so be evasion the disclosures viewed, provide manipulation statutory an understandable ex of the woman’s legislature every right planation, opt-out. and to make audible the auscul had 171.012(a)(4) integrity to maintain the of the mandated specifically tation. Section displays by relieving require does not to ensure disclosures liability non-compliance images, the woman that she views “solely” pregnant when the woman invokes explanation, understands or that she § 171.0122. failed to demon- listens to the auscultation. Contrast this requirement the one strate a substantial likelihood Sections language with 171.012(a)(4) publication 171.0122 conflict in an paternity State’s and child unconstitutionally vague way. if support a woman who has elected not to undergo simply an abortion misses a fol- Providing printed materials under

C. low-up appointment, or fails to schedule Section 171.0123 another physician. visit The obvi- ous solution to provides potential ambiguity Section 171.0123 relevant part: knowledge requirement about a is for a physician’s office to disseminate the mate-

If, being provided sonogram with a after *14 rial appear whenever the woman fails to information required under this and the for her abortion. No extreme burden is subchapter, pregnant woman choos- placed physician, on the nor is the woman abortion, physician es not have an matter, harmed if she printed receives the agent physician pro- or an of the shall whether or not she carried out an abortion. pregnant publica- vide the woman with a is, vagueness complaint bottom, This by developed [the tion relevant State trivial. agency] provides that information about

paternity sup- establishment child Conclusion

port. ... Appellees failed to demonstrate troubling The district court found constitu- tional flaws in H.B. physician’s Accordingly, they the absence of “mention of the prove cannot knowledge,” the fact substantial likelihood of combined with that success on each of language the section “contains no their First Amendment suggest vagueness ing physician exempt is ever from claims. This is fatal application their for a obligation provide preliminary injunc- additional informa Accordingly, tion. tion.” The court concluded that while the we VACATE the dis- trict impart preliminary injunction, section did not court’s RE- physi need to to a MAND for comply duty,” proceedings cian “how ... with this further consistent [to] opinion, it with this physicians appeals failed to inform ... further “what in [they] by must this matter will be heard comply require panel. do with the this ments of the Act.” The district court en HIGGINBOTHAM, E. PATRICK

joined the penalizing physi State from Judge, concurring: Circuit cian, otherwise,” “criminally failing or provide printed materials under Section join I panel opinion and with the “in 171.0123 cases where the freedom of writing without decisional force does know whether the woman has upon offer different accent the appropri- chosen to have an abortion.” ate role of the First in Amendment this face, On provision appears fairly its my eyes case. To there are two settled flexible, permitting either a or principles speech in doctrine inform his designated agent First, to disseminate the today. our decision in protection of required materials. No doubt rules and a valid interest the state need not remain regulations promulgated will be to specify neutral may engage its views and compliance. “what” and “how” of persuade efforts to citizens to exercise However, the district court and right their constitutional to choose a state- potential focused on the problem phy- preferred Second, of a course. the state can- sician’s not knowing whether a woman compel has a citizen to voice the state’s chosen to thereby have immediately views as his own. It is appar- being uncertain of duty his to furnish the ent that principles impli- both of these ly pro- included the immediate risks of the of doctors’ com- by regulation state cated attending It is a failure to patients. their cedure and the risks with munications that, Supreme given potentiality of life. At the equally apparent appreciate fully time, recognized each that frame- Casey decision same Court’s today, dimin- abided without informed consent to appropriately obtaining works for vitality. their ishing must leave the ultimate decision abortion woman, fully whose informed de- long has doctor-patient relationship by cannot be frustrated the state. cision within the constraints of conducted been Today Casey, whose force much we abide to the risks of medical informed consent acknowledge. here argument fails by the common as demanded procedures, reminding It bears Roe survived Ca- law, professional norms. legislation, form, sey only relinquishing in a recast princi- rests on settled The doctrine itself longer support that no much of reaches autonomy, by a personal protected ples criticism leveled at this Texas statute. law, of tort overlaid pattern reticulated *15 apply today’s must and do rules as We state-imposed regulation. self- and both can without and with best we hubris less securing informed con- Speech incident to prefer, sureness than we would well aware history of this long sent submits to the jurisprudence procrea- the whole regulatory pattern. tion, escape life and death cannot their accented Casey The Court’s decision mystery, yet, large perhaps shrouds of life, holding in potential the state’s interest not, to be lifted advances of science. Roe following earlier decisions its give interest force at all failed to that in pregnancy of a service

stages may insist that a

of this interest the state development aware of the

woman be made stage pregnancy. at her

of the fetus held that the fact

Significantly, the Court truthful, accurate information

that such not to abort may cause a woman to choose Billy LAMPTON, In re Movant. its rele- pregnancy her reinforces informed Insisting decision. vance to No. 11-30458. this information in his give

that a doctor of Appeals, United States Court securing role of informed con- traditional Fifth Circuit. just permissible. Texas has done sent to its exceptions this and affords three Jan. information about the required delivery of judg- stage growth of fetal where its relevance, had less

ment the information judgment that is at least ration-

legislative

al. pathway for

Casey opens no unfettered suppress through abortions

states Casey informed consent.

medium affording a wom-

spoke of frameworks to the

an accurate information relevant attending plain- her decision. Those

risks