Supreme Court rejects North Carolina appeal to revive abortion law

The US Supreme Court on Monday let stand an appeals court decision blocking a North Carolina law that sought to require abortion providers to conduct an ultrasound and display and describe the image to any woman considering ending her pregnancy.

The high court turned down a petition to hear the case in a one-line order. Justice Antonin Scalia dissented from that action, but did not offer further comment.

The question in the case was whether North Carolina’s ultrasound law violated the free speech rights of doctors and clinic technicians by forcing them to deliver a state-dictated antiabortion message to women seeking an abortion.

The North Carolina law required the performance of an ultrasound at least four hours and no more than 72 hours before an abortion. During the procedure, the doctor was required to position the ultrasound image in a way that the patient could view it, and the doctor must provide a “medical description of the images… [including] the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable,” according to the statute. 

The law permitted a woman to avert her eyes and refuse to listen to the description. It nonetheless required the physician or technician to present that information to the patient regardless of her objections and regardless of any concern by the physician that the requirement might inflict psychological trauma.

Two months after the statute was passed in 2011, a group of North Carolina physicians and health care providers sued to block the law. 

A federal judge issued an injunction, and a panel of the Richmond-based Fourth US Circuit Court of Appeals affirmed, permanently blocking the measure.

The appeals court said the law was an unconstitutional content-based regulation of a doctor’s communication with his or her patient.

The court said the statute forced doctors to deliver an ideological message to every woman seeking an abortion, including those who might cover their eyes and block their ears to avoid seeing and hearing the message.

The appeals court noted that the physician is “compelled to deliver the state’s preferred message in his or her own voice.”

The Fourth Circuit panel added that while the state is free to express a preference for childbirth over abortion, the state “cannot commandeer the doctor-patient relationship to compel a physician to express its preference to the patient.”

The appeals court said the statute improperly required delivery of ideological information irrespective of the needs or wants of the patient in a manner “intended to convey not the risks and benefits of the medical procedure to the patient’s own health, but rather the full weight of the state’s moral condemnation.”

The appeals court expressed concern that the required process might cause psychological distress to the patient.

In urging the high court to take up the case and uphold the statute, North Carolina Solicitor General John Maddrey had argued that the Fourth Circuit’s decision clashed with decisions by the New Orleans-based Fifth Circuit and the St. Louis-based Eighth Circuit upholding a similar ultrasound viewing and description law in Texas and a similar physician notification law in South Dakota.

Twenty-four states have passed laws requiring an ultrasound be performed or offered prior to an abortion. 

Five of those states have enacted additional requirements that the ultrasound images be displayed and described.

Judges have issued permanent injunctions blocking ultrasound display and description laws in North Carolina and Oklahoma.

Similar laws are being enforced in three other states – Louisiana, Texas, and Wisconsin.

Solicitor General Maddrey said in his petition to the court that North Carolina’s display and description law was a reasonable regulation of medical practice that did not violate free speech principles.

He argued that the Supreme Court upheld a similar notification law in its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. In that case, Pennsylvania required that a woman be notified of the risks of abortion and childbirth, the probable gestational age of the fetus, as well as the availability of childbirth assistance and adoption services.

“The information North Carolina requires doctors to provide is slightly different than the information Pennsylvania required in Casey,” Mr. Maddrey wrote. “But the object of the statute is the same, as is its lawfulness.” 

In urging the high court not to take up the North Carolina case and thus leave the injunction in place, lawyers for the doctors said the Fourth Circuit’s decision did not clash with rulings in other circuits.

“All courts agree that the government cannot mandate physicians (or anyone else) to engage in ideological speech,” Julie Rikelman of the Center for Reproductive Rights wrote in her brief to the high court.

She wrote that there were significant differences between the informed consent process upheld in the Supreme Court’s Casey decision and the North Carolina law.

Under the process examined in Casey, the doctor-patient communication would take place in an office with the patient fully-clothed. In contrast, the appeals court noted, the North Carolina notification and description process must take place during an examination in which the patient is “half-naked or disrobed on her back on an examination table, with an ultrasound probe” in place. It is at that point, Ms. Rikelman says, that the physician is compelled to deliver the state’s message.

“In Casey, the state’s message about fetal life was communicated through the state’s own speech, in a pamphlet produced by the state itself, which the physician only needed to offer to the patient, and only then if the physician concluded that the offer itself would not be harmful,” Rikelman said. 

“Here, by contrast, the physician must deliver the state’s message about fetal life in his or her own voice, regardless of what the patient wants, in the midst of a medical procedure,” she added.

The case was McGill v. Stuart (14-1172).