May 10, 2021

North Carolina abortion ultrasound rule violates first amendment, court says

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Abortion-WilkinsonBy Mike Sacks, From The National Law Journal

A federal appeals court Monday struck down a key provision of North Carolina’s abortion regulations as a violation of doctors’ First Amendment right to free speech.

“Abortion may well be a special case because of the undeniable gravity of all that is involved, but it cannot be so special a case that all other professional rights and medical norms go out the window,” wrote Judge J. Harvie Wilkinson III for a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit.

The decision affirms a district court ruling in January against a requirement in the Woman’s Right to Know Act that doctors or technicians perform an ultrasound on a woman within three days of her scheduled abortion to give a detailed description of the fetus and present the woman with an opportunity to hear the fetal heartbeat, all in real time.

The appeals court called the requirement “quintessential compelled speech,” and found that it “explicitly promotes a pro-life message by demanding the provision of facts that all fall on one side of the abortion debate—and does so shortly before the time of decision when the intended recipient is most vulnerable.”

The Fifth Circuit came to the opposite conclusion in 2012 over a similar law in Texas. And the Eighth Circuit in 2008 and 2012 upheld portions of a South Dakota law that requires doctors to tell a woman that “the abortion will terminate the life of a whole, separate, unique, living human being” and could result in “increased risk of suicide and ideation of suicide.”

On Monday, Wilkinson wrote that both circuits “read too much” into the U.S. Supreme Court’s landmark abortion case they cited to reject challenges to the laws in Texas and South Dakota.

“[Planned Parenthood v.] Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here,” wrote Wilkinson, referring to the Supreme Court’s 1992 decision reaffirming Roe v. Wade.

Subjecting North Carolina’s law to a heightened scrutiny not applied in those other cases, the Fourth Circuit found that the state put a disproportionate burden on physicians’ speech and was not properly drawn to further the state’s interest in prioritizing childbirth over abortion.

“This statutory provision interferes with the physician’s right to free speech beyond the extent permitted for reasonable regulation of the medical profession, while simultaneously threatening harm to the patient’s psychological health, interfering with the physician’s professional judgment, and compromising the doctor-patient relationship,” Wilkinson wrote.

The law, which subjects violating physicians to money damages and potential loss of medical license, does allow for a woman to avert her eyes from the ultrasound screen and refuse to hear the required information and fetal heartbeat. But “forced speech to unwilling or incapacitated listeners does not bear the constitutionally necessary connection to the protection of fetal life,” Wilkinson wrote.

Louise Melling, deputy legal director for the ACLU, said in a prepared statement: “This law is about trying to shame a woman out of having an abortion, pure and simple. Politics don’t belong in the exam room, and a doctor shouldn’t have to humiliate a woman because some politicians disagree with her decision.”

IMAGE: J. Harvie Wilkinson III. Photo: Diego M. Radzinschi/NLJ

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