Doctors and other health care providers challenging the state’s 2011 pre-abortion ultrasound requirement will make their case before the 4th U.S. Circuit Court of Appeals in Richmond this morning, hoping to persuade the three-judge panel to affirm a lower court decision rejecting that law as unconstitutional .
Here’s a quick synopsis of the case and what’s at stake.
The ultrasound law
Over a veto by then-Governor Bev Perdue, state lawmakers enacted the Woman’s Right to Know Act in July 2011. The law requires in relevant part that a doctor perform an ultrasound on a patient – regardless of consent — at least four hours before an abortion, showing her the images and describing what is seen.
As described by U.S. District Judge Catherine Eagles in her decision overturning the law:
The patient must lie on an examination table where she either (i) exposes the lower portion of her abdomen, or (ii) is naked from the waist down, covered only by a drape. Depending on the stage of pregnancy, the provider (i) inserts an ultrasound probe into the patient’s vagina, or (ii) places an ultrasound probe on her abdomen.
The provider must display the images produced from the ultrasound “so that the pregnant woman may view them.” Providers must then give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”
The patient need not view the images nor listen to the description by the doctor; she can look away or shield her eyes and ask for ear plugs or some other device to block her hearing.
The law provides no exceptions for patients who are victims of rape or incest, who are minors or who may be carrying a fetus with severe abnormalities or which is not otherwise viable.
Several North Carolina doctors and other health care providers sued state officials in federal court in Greensboro in late September 2011, contending that the ultrasound requirements intruded upon the patient-physician relationship and amounted to compelled speech in violation of the First Amendment right to free speech.
The doctors argued that the ultrasound provision required them to convey the state’s message of discouraging abortion and encouraging childbirth, which they would not have delivered absent a patient’s consent.
In response, state officials argued that in requiring doctors to perform the ultrasound and convey accurate and truthful information about the fetus, they were well within the confines of permissible state regulation of the medical profession.
Judge Eagles temporarily blocked the ultrasound provision of the Act and then in January of this year permanently struck it down.
Applying principles underlying the First Amendment right to free speech, Eagles found that to the extent the Act required physicians to deliver information in support of the state’s philosophic and social position, it was impermissible content-based regulation.
Alternatively, the judge found that if the provision was intended to advance a substantial state interest in regulating health care, it did not pass muster, especially given that the patient did not have to listen and could take steps to avoid hearing the message.
Eagles wrote: “The Supreme Court has never held that a state has the power to compel a health care provider to speak, in his or her own voice, the state’s ideological message in favor of carrying a pregnancy to term, and this Court declines to do so today. “
Content or regulation?
For the most part, the outcome of the case turns on the level of review the court finds is applicable.
The doctors have argued, and Judge Eagles agreed, that the ultrasound requirement amounts to content-based compelled speech. Here, as the judge noted, the state is requiring them to convey a message designed to persuade women not to terminate a pregnancy (which the state acknowledged was one of its purposes of the ultrasound requirement).
Content-based speech is generally subject to “strict scrutiny,” even where the compelled speech is limited to factually accurate or non-ideological statements. “Strict scrutiny” requires that the speech restriction be narrowly tailored to promote a compelling government interest.
The American Medical Association, American College of Obstetricians and Gynecologists and the American Public Health Association have filed friend-of–the court briefs in support of the doctors’ position.
State officials, on the other hand, have portrayed the ultrasound requirement as “professional speech,” within the state’s traditional power to regulate the practice of medicine so as to promote and protect patient health. “Professional speech” does not violate the First Amendment if it is rationally related to a legitimate state interest. Here, they contend, the information provided is factual, truthful and relevant to a patient’s medical decision – not in any way ideological.
Only the Fifth Circuit has ruled on a similar ultrasound law challenged on a similar basis, with an opposite result.
In Texas Medical Providers Performing Abortion Services v. Lakey, decided in 2012, a three-judge panel in Texas upheld the state’s pre-abortion ultrasound provision — based upon the U.S. Supreme Court’s 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey.
The law in Casey required a doctor to advise a pre-abortion patient of the gestational age of her fetus and to inform her of available printed information about the risks of abortion, medical assistance for childbirth, child support from the father, and a list of agencies which provided adoption and other services as alternatives to abortion.
In upholding the Texas ultrasound law, the Fifth Circuit found little meaningful difference between the written information required in Casey and the medical procedure required in Lakey.
Here, Judge Eagles had a far different take:
To the extent the Act requires providers to speak the state’s message to women who cover their ears and eyes to avoid the state’s message, it is performative rather than informative, and it does not serve any legitimate purpose.
This is in stark contrast to the Casey statute, which required providers only to make a patient aware of the availability of a state-sponsored pamphlet concerning fetal characteristics. The statute did not specify where or how the information had to be provided, and it did not require the provider to personally show information about fetal development to patients. [Here] the Act requires the provider to deliver in his or her own voice information the state deems relevant during the middle of a medical procedure in the exact manner dictated by the state, a much more significant intrusion than the Casey statute’s relatively passive requirements.
Should the Fourth Circuit affirm Judge Eagle and conflict with the Fifth Circuit, the resulting split in the circuits will likely land the North Carolina case before the U.S. Supreme Court.
(As an aside, increasingly restrictive anti-abortion measures in Texas hit a wall earlier this month – if perhaps only temporarily – when the U.S. Supreme Court blocked a law that would have required abortion clinics to meet the standards of surgical facilities and doctors to have admitting privileges at area hospitals. If enforced, that law would have effectively shut down all but eight of the state’s abortion clinics.)