Last week, the United States Court of Appeals for the Fourth Circuit ruled that North Carolina’s “Woman’s Right to Know Act” is unconstitutional.
In July 2011, the North Carolina General Assembly passed the “Woman’s Right to Know Act.” The Act amended Chapter 90 of the North Carolina General Statutes, which governs medical and related professions, adding a new article that regulated the steps that must occur before an abortion.
In September 2011, several doctors sued state officials. They argued that the Act’s Real-Time View Requirement amounted to compelled speech in violation of their First Amendment rights. In October 2011, the district court issued a preliminary injunction, which barred the enforcement of one provision of the Act, the Display of Real-Time View Requirement. The same court later struck down the Act because it “impermissibly required physicians to deliver information in support of the state’s philosophic and social position.” Thus, it was unconstitutional content-based regulation. Alternatively, the court found that “if the provision of the Act purposed to further a substantial [North Carolina] interest, [the Display of Real-Time View Requirement] was insufficient because the patient did not have to listen.” They could, for example, cover their ears.
The Disputed Portion of the “Woman’s Right to Know Act”
The Display of Real-Time View Requirement obligates doctors (or technicians) to perform an ultrasound on any woman seeking an abortion at least four but not more than seventy-two hours before the abortion is to take place. The physician must display the sonogram so that the woman can see it, and describe the fetus in detail, “includ[ing] the presence, location, and dimensions of the unborn child within the uterus and the number of unborn children depicted.” The physician must also display and describe in detail “the presence of external members and internal organs [of the fetus], if present and viewable.”
The Single Exception
The Act provides an exception to the Real-Time View Requirement requirements only in cases of a medical emergency. Physicians who violate the Act are liable for damages and may be stopped from providing further abortions that violate the Act in North Carolina. Furthermore, physicians that violate the Act may lose their medical license.
Why Did the Fourth Circuit Decide the Act was Unconstitutional?
The Fourth Circuit began its analysis by stating that “North Carolina’s avowed intent and the anticipated effect of all aspects of the Requirement are to discourage abortion or at the very least cause the woman to reconsider her decision.” The Fourth Circuit called the Real-time display requirement “quintessential compelled speech.” “It forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion.”
More precisely, the Fourth Circuit noted that the “Display of Real-Time View Requirement 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 Display of Real-Time View Requirement] 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.
Finally, the Fourth Circuit noted how the informed consent portion of the Act deviates from traditional informed consent. “The most serious deviation from standard practice [requires] the physician to display an image and provide an explanation and medical description to a woman who has, through ear and eye covering, rendered herself temporarily deaf and blind. This is starkly compelled speech that impedes on the physician’s First Amendment rights with no counterbalancing promotion of state interests. The woman does not receive the information, so it cannot inform her decision.” Moreover, “forced speech to unwilling or incapacitated listeners does not bear the constitutionally necessary connection to the protection of fetal life.”
Implications of the Fourth Circuit’s Decision
Although the Fourth Circuit held that the “Woman’s Right to Know Act” is unconstitutional, the fight between the doctors, that initiated this lawsuit, and the state officials, that enacted this law, is not over. First, the decision by the Fourth Circuit can be appealed to the Supreme Court of the United States. Secondly, the Office of the North Carolina Attorney General has confirmed that it plans to appeal the Fourth Cirucuit’s decision. Lastly, another Circuit ruled that an act similar to the “Woman’s Right to Know Act” was constitutional. Therefore, it is likely that the Supreme Court will agree to hear this case in order to settle the split decisions within the Circuits. Until then, the fight goes on. . . Learn Your Rights 101