North Carolina to appeal court decision that abortion and ultrasound law violates the First Amendment

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In July 2011, House Bill 854, also known as the Woman’s Right to Know Act, was presented to then-Governor Beverly Perdue.  The Bill prohibits an abortion unless a physician conveys state-specified information to the patient.  The former Governor vetoed the bill, remarking that it was a “dangerous intrusion into the confidential relationship that exists between women and their doctors” and that “physicians must be free to advise and treat their patients based on their medical knowledge and expertise and not have their advice overridden by elected officials seeking to impose their own ideological agenda on others.”  However, in October 2011, the North Carolina General Assembly passed the Woman’s Right to Know Act (“N.C. Woman’s Act”), despite Perdue’s  veto.

The N.C. Woman’s Act (pdf) requires that abortion providers conduct an ultrasound on their patients at least four hours, but no more than seventy-two hours, prior to an abortion and display and describe the fetal images, including the fetus’s dimensions.  Referred to as “speech-and-display,” this provision caught the immediate attention of the American Civil Liberties Union (ACLU) and Planned Parenthood Federation of America.  These organizations, along with several physicians, filed suit in late September 2011 in the case of Stuart v. Loomis, shortly before the N.C. Woman’s Act became effective.

Applying strict scrutiny, the District Court specified that the State not only compelled the delivery of the message, but also the content of the message, including the format of the message and when and where it must be delivered.

The U.S. District Court for the Middle District of North Carolina published its opinion (pdf) in Stuart on January 17, 2014, after allegations that the speech-and-display provision of the N.C. Woman’s Act violated a physician’s First Amendment rights.  Physicians alleged that because the Act’s provision compelled them to deliver the State’s content-based message to their patients, strict scrutiny should apply.  U.S. District Judge Catherine Eagles agreed.  In applying strict scrutiny, the District Court specified that the State not only compelled the delivery of the message, but also the content of the message, including the format of the message and when and where it must be delivered.

The District Court noted that requiring a physician to deliver the State’s content-based, non-medical message in his or her own voice as if the message was his own constituted compelled, ideological speech warranting the highest degree of First Amendment protection.  The Court ultimately rendered a judgment in favor of the ACLU and the physicians, ruling the speech-and-display provision of the N.C. Woman’s Act unconstitutional.

The N.C. Woman’s Act goes beyond relaying the availability of materials to actually delivering a message in a manner dictated by the State.

Judge Eagles distinguished the North Carolina case from the landmark decision of Planned Parenthood v. Casey, noting that the opinion was still consistent with Casey principles.  In Casey, the Supreme Court of the United States upheld the constitutionality of a Pennsylvania statute requiring providers to make patients aware of the availability of state-sponsored pamphlets pertaining to fetal characteristics.  Casey stands for the proposition that a physician may convey truthful, non-misleading information without constituting an undue burden on a woman’s right to choose, so long as it passes First Amendment muster.

The Casey Court contrasted the state’s inability to compel ideological speech from the state’s ability to regulate the practice of medicine and held there was no constitutional infirmity in that case by allowing physicians to provide the information mandated by the state.  Since Casey was originally analyzed under the due process standard, it was subject to rational basis review.  According to Judge Eagles, it would be incorrect to apply the constitutional theory of due process to First Amendment speech principles that at times require strict scrutiny.

The District Court’s opinion in Stuart specified that the N.C. Woman’s Act was in “stark contrast” to the statute in Casey.  The Pennsylvania statute at issue in Casey did not preclude states from requiring physicians to inform a woman seeking an abortion the availability of materials relating to its consequences.  However, while the Pennsylvania statute only required that physicians convey the availability of materials, the N.C. Woman’s Act goes beyond relaying the availability of materials to actually delivering a message in a manner dictated by the State.

North Carolina is not the only state that has confronted the First Amendment challenge of abortion and ultrasound law.

North Carolina is not the only state to confront the First Amendment challenge of abortion and ultrasound law.  Despite the fact that over two years passed between the initial challenge to the North Carolina law and the District Court’s ruling, Texas received its final judgment regarding the constitutionality of its own Woman’s Right to Know Act two years ago.  In January 2012, the U.S. Court of Appeals for the Fifth Circuit upheld the constitutionality of the Texas Woman’s Right to Know Act (“Texas Woman’s Act”) in Texas Medical Providers Performing Abortion Services v. Lakey (pdf).  Similar to the N.C. Woman’s Act, the Texas Woman’s Act required abortion providers to display a sonogram and ensure the fetal heartbeat was audible.  However, the Texas Woman’s Act was one of the first to impose criminal sanctions, including loss of medical licensure for violation of the Act.

Although the physicians in Lakey argued that strict scrutiny should apply, since the sonogram display and making the fetal heartbeat audible to the patient represented the state’s ideological message, the Fifth Circuit applied rational basis review.  The Fifth Circuit vacated the District Court’s ruling and held that the Texas Woman’s Act did not violate the First Amendment because the speech imposed by the statute was non-misleading and truthful.

As of February 2014, there are currently twenty-three states that regulate the provision of ultrasounds by abortion providers and twelve that require verbal counseling or written materials.

As of February 2014, there are currently twenty-three states that regulate the provision of ultrasounds by abortion providers and twelve that require verbal counseling or written materials.  Out of the twenty-three states that mandate an ultrasound, three states require the health care provider to show and describe (pdf) the ultrasound image, while nine states require the provider to offer the opportunity to view the image.

Time will tell whether an appeal will change the constitutional footprint left by the District Court on North Carolina’s abortion and ultrasound law.

What’s next for North Carolina with respect to the abortion and ultrasound law?  Attorney General Roy Cooper has decided to appeal the ruling, stating that while he “oppose[s] laws like this that force the state into women’s medical decisions,” several “legitimate constitutional questions remain that should be decided by a higher court.”  He added that “[i]t is the duty of the Officer of Attorney General to defend state laws, regardless of whether I agree with them.”

Similarly, legislators Thom Tillis (R) and Phil Berger (S) thought the federal decision should be appealed because the ultrasound provision is “the most critical piece of the law.”  On the other hand, Governor Pat McCrory was not at all interested in appealing the ruling, as “most of the law already went into effect.”  Time will tell whether an appeal will change the constitutional footprint left by the District Court on North Carolina’s abortion and ultrasound law.