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Ultrasound issue headed to the Court

State officials in North Carolina plan to ask the Supreme Court to sort out a dispute among lower courts on state power to require doctors to perform ultrasound tests while delivering an anti-abortion message to pregnant women before an abortion can occur. The office of Roy Cooper, the attorney general of North Carolina, confirmed for news media in North Carolina that the state plans to challenge a ruling a week ago by the U.S. Court of Appeals for the Fourth Circuit before the Justices.

The Fourth Circuit struck down a 2011 North Carolina law, finding it to be an effort to turn doctors performing abortions into “mouthpieces” to deliver the state’s message to discourage such procedures.  That ruling, in the case of Stuart v. Camnitz, conflicts directly with a decision in early 2012 by the U.S. Court of Appeals for the Fifth Circuit, upholding a similar Texas law.  The Fifth Circuit’s decision, in Texas Medical Providers Performing Abortion Services v. Lakey, was not appealed beyond that court.

In announcing plans to appeal to the Supreme Court, North Carolina officials cited the conflict in appeals court rulings.  Legislators in that state have argued that the 2011 Woman’s Right to Know Act has reduced the numbers of abortions by nearly a quarter.

Although women’s rights supports have argued that state laws requiring doctors to use sonogram techniques to display fetal images interfere with a woman’s right to an abortion, neither the North Carolina case nor the Texas one has involved direct challenges to such mandates.  Rather, both were lawsuits based upon the First Amendment free-speech rights of the doctors, claiming that the state laws forced doctors to deliver the state’s “pro-life” message before they could perform an abortion.

The North Carolina law was passed by the state legislature under its authority to regulate the medical profession, and to impose requirements that a pregnant woman give “informed consent” to going ahead with an abortion.  The Fourth Circuit, however, ruled that the mandated procedures would go well beyond normal informed-consent requirements.

Under the state law, a doctor dealing with a woman who has entered a clinic to obtain an abortion must provide the procedure at least four hours, but no more than seventy-two hours, before actually doing the abortion.  While the woman is on an examining table, the doctor must run an ultrasound device over her abdomen with a display that she can see.

As the image of the fetus is shown, the doctor is required to describe the physical characteristics of the “unborn child” in highly detailed form, and to allow the woman to hear the heartbeat if it can be detected.  The doctor must provide the verbal description in his or her own voice, and must do so even if the woman turns away, covers her eyes, or covers her ears to avoid the images and the message.  This procedure is in addition to normal “informed consent” requirement, in which the doctor is to describe the risks and alternatives to abortion.

The law allows the doctor to forgo this procedure only in case of an emergency, and there is no “therapeutic privilege” that would allow the doctor to avoid going through the procedure because it would be medically harmful for the patient.

In striking down the ultrasound and verbal messages parts of the law (leaving the normal “informed consent” part of the law intact), the Fourth Circuit noted that the state in defending the law had freely conceded that the purpose and anticipated effect of the display and the message were to cause the woman to change her mind or at least to reconsider her intent to have an abortion.   This, the court said, was an “ideological” message focusing on only one side of the abortion question.

Even if what the doctors says to the woman during the required procedure is truthful and factual, the Fourth Circuit opinion said, “that does not divorce the speech from the moral or ideological implications” of the message as mandated.  This, it found, is a form of government-compelled speech, and to survive constitutional review, it had to pass a “heightened scrutiny” test.  It did not survive that test, the court declared.

The required procedure, the Fourth Circuit said, “imposes a virtually unprecedented burden on the right of professional speech that operates to the detriment of both speaker and listener.”

The difference between the Fourth Circuit’s ruling and the Fifth Circuit’s decision in 2012 turns on their conflicting interpretations in a single paragraph of the Supreme Court’s 1992 decision in Planned Parenthood of Southeast Pennsylvania v. Casey.

The Casey decision is the one in which the Justices reaffirmed the basic right to abortion, from the 1973 decision in Roe v. Wade, but granted states some new leeway to regulate abortions.

The paragraph now in dispute provided  the Supreme Court’s reasons for upholding an “informed consent” procedure in a Pennsylvania anti-abortion law against a First Amendment free-speech claim by doctors.  The Fourth Circuit said the Pennsylvania procedure was far narrower than the one mandated in North Carolina, while the Fifth Circuit interpreted the Casey language as sustaining the Texas law’s ultrasound and message requirement.

The coming state appeal from North Carolina to test the Fourth Circuit ruling will not be in time for the Justices to rule on it during the current Term.





Recommended Citation: Lyle Denniston, Ultrasound issue headed to the Court, SCOTUSblog (Dec. 29, 2014, 1:41 PM),