Monday, December 22, 2014

Fourth Circuit Finds North Carolina's Anti-Abortion "Right to Know" Statute Violates First Amendment

[updated below]

In the unanimous panel opinion today in Stuart v. Camnitz, authored by Judge J. Harvie Wilkinson, the court agreed with the district judge that North Carolina's "Woman's Right to Know Act" violates the First Amendment.  The Act required a physician "to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions."

The Fourth Circuit ruled that the statute is

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. The state freely admits that the purpose and anticipated effect of the Display of Real-Time View Requirement is to convince women seeking abortions to change their minds or reassess their decisions.

A_young_physician_feeling_the_pulse_of_a_young_woman,_a_pain_Wellcome_L0013913The court rejected the state's contention that the statute was merely a regulation of professional speech that should be subject to the low standard of rational basis review.  Instead, the court reasoned that because the statute was a content-based regulation of speech, it should be evaluated under an intermediate scrutiny standard akin to that of commercial speech.

Importantly, the court also acknowledged its specific disagreement with the Eighth Circuit's en banc opinion in Planned Parenthood v. Rounds (2012) and the Fifth Circuit's opinion in Tex. Med. Providers Performing Abortion Servs. v. Lakey (5th Cir. 2012).   The Fourth Circuit states that its sister circuits were incorrect to reply on a single paragraph in Planned Parenthood of Southeastern Pa. v. Casey, and "read too much into Casey and Gonzales [v. Carhart]," neither of which, the court points out, were First Amendment cases.

As the court stated,

In sum, though the State would have us view this provision as simply a reasonable regulation of the medical profession, these requirements look nothing like traditional informed consent, or even the versions provided for in Casey and in N.C. Gen. Stat. § 90-21.82. As such, they impose an extraordinary burden on expressive rights. The three elements discussed so far -- requiring the physician to speak to a patient who is not listening, rendering the physician the mouthpiece of the state’s message, and omitting a therapeutic privilege to protect the health of the patient -- markedly depart from standard medical practice.

It concluded,

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. While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here.

Most likely North Carolina will seek en banc review or petition for certiorari based on the conflicting opinions in the Fifth and Eighth Circuits.

UPDATE: On June 15, 2015, the United States Supreme Court's Order denied certiorari in the case now styled Walker-McGill v. Stuart, with a notation "justice Scalia dissents," but with no accompanying opinion.

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Comments

How is it remotely in congruence with freedom of speech doctrine that a law compelling a physician to convey the state's political viewpoint to a patient is subject to intermediate (or even strict) scrutiny? Regulations of speech based on viewpoint are flatly unconstitutional--RAV v. St. Paul and subsequent decisions are unequivocal about this. The purpose of "informed consent" requirements for abortion have always been to dissuade a woman from exercising her constitutional rights, but the increasingly conservative Supreme Court long ago accepted the pretext that the purpose was merely to provide useful information to the woman. (Just as the state requires providing similar information to a man before having a vasectomy.) When this pretext is abandoned, shouldn't the court's cease to pretend that the state is being neutral?

Posted by: Jeffrey G. Purvis | Dec 23, 2014 10:51:54 AM

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