Archives

News

In an order released this morning, the U.S. Supreme Court refused, over a dissent by Justice Antonin Scalia,  to review a ruling striking down North Carolina’s 2011 law requiring doctors to give women a narrated ultrasound before undergoing an abortion. The Court’s decision means the law, which had been challenged by the American Civil Liberties Union and other groups, cannot go into effect.

“North Carolinians should take comfort in knowing that this intrusive and unconstitutional law, which placed the ideological agenda of politicians above a doctor’s ability to provide a patient with the specific care she needs, will never go into effect,” Sarah Preston, acting Executive Director of the ACLU of North Carolina, said in a statement. “We’re very glad the courts have recognized that politicians have no business interfering in personal medical decisions that should be left to a woman and her doctor.”

Over a veto by then-Governor Bev Perdue, state lawmakers enacted the Woman’s Right to Know Act in July 2011. The law requires in relevant part that a doctor perform an ultrasound on a patient – regardless of consent — at least four hours before an abortion, showing her the images and describing what is seen.

As described by U.S. District Judge Catherine Eagles in her January 2014 decision overturning the law:

The patient must lie on an examination table where she either (i) exposes the lower portion of her abdomen, or (ii) is naked from the waist down, covered only by a drape. Depending on the stage of pregnancy, the provider (i) inserts an ultrasound probe into the patient’s vagina, or (ii) places an ultrasound probe on her abdomen.

The provider must display the images produced from the ultrasound “so that the pregnant woman may view them.” Providers must then give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

The patient need not view the images nor listen to the description by the doctor; she can look away or shield her eyes and ask for ear plugs or some other device to block her hearing.

The law provides no exceptions for patients who are victims of rape or incest, who are minors or who may be carrying a fetus with severe abnormalities or which is not otherwise viable.

On appeal, the 4th U.S. Circuit Court of Appeals agreed with Eagles and blocked enforcement of the  law, finding that it violated the First Amendment rights of physicians who provide abortions.

For more on the case and the appeal at the Fourth Circuit, read here and here.

 

News

In a unanimous decision released today, the 4th U.S. Circuit Court of Appeals has blocked enforcement of the state’s pre-abortion ultrasound law, finding that it violates the First Amendment rights of physicians who provide abortions.

Here’s how U.S. District Judge Catherine Eagles described the law in her lower court decision overturning it:

The patient must lie on an examination table where she either (i) exposes the lower portion of her abdomen, or (ii) is naked from the waist down, covered only by a drape. Depending on the stage of pregnancy, the provider (i) inserts an ultrasound probe into the patient’s vagina, or (ii) places an ultrasound probe on her abdomen.

The provider must display the images produced from the ultrasound “so that the pregnant woman may view them.” Providers must then give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

Several North Carolina doctors and other health care providers sued state officials in federal court in Greensboro in late September 2011, contending that the ultrasound requirements intruded upon the patient-physician relationship and amounted to compelled speech in violation of the First Amendment right to free speech.

The doctors argued that the ultrasound provision required them to convey the state’s message of discouraging abortion and encouraging childbirth, which they would not have delivered absent a patient’s consent.

In response, state officials argued that in requiring doctors to perform the ultrasound and convey accurate and truthful information about the fetus, they were well within the confines of permissible state regulation of the medical profession.

Judge Eagles temporarily blocked the ultrasound provision of the Act and then in January of this year permanently struck it down.

Applying principles underlying the First Amendment right to free speech, Eagles found that to the extent the Act required physicians to deliver information in support of the state’s philosophic and social position, it was impermissible content-based regulation.

Alternatively, the judge found that if the provision was intended to advance a substantial state interest in regulating health care, it did not pass muster, especially given that the patient did not have to listen and could take steps to avoid hearing the message.

The three judges on the Fourth Circuit agreed with Eagles.

Writing for the court, U.S. Circuit Judge J. Harvie Wilkinson III said:

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. . . .  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.

Other aspects of the Requirement are equally unusual. As described above, informed consent frequently consists of a fully-clothed conversation between the patient and physician, often in the physician’s office. . . This provision, however, finds the patient half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina. Informed consent has not generally been thought to require a patient to view images from his or her own body, much less in a setting in which personal judgment may be altered or impaired. Yet this provision requires that she do so or “avert[] her eyes.”  Rather than engaging in a conversation calculated to inform, the physician must continue talking regardless of whether the patient is listening.The information is provided irrespective of the needs or wants of the patient, in direct contravention of medical ethics and the principle of patient autonomy. And it is 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. Though the state is plainly free to express such a preference for childbirth to women, it is not the function of informed consent to require a physician to deliver the state’s preference in a setting this fraught with stress and anxiety.

Read more on the case here.

Read the full decision here.

Uncategorized

ultra117U.S. District Judge Catherine C. Eagles today struck down a North Carolina law requiring abortion providers to show a woman an ultrasound and describe the images in detail four hours before having an abortion, even if the woman objects.  Eagles held that provisions of the law violated providers’ First Amendment rights to free speech.

“Today the court sided with the rights of women and their doctors over the ideological agenda of extremist lawmakers,” said Jennifer Rudinger, executive director of the ACLU of North Carolina, which challenged the law along with the American Civil Liberties Union, the Center for Reproductive Rights and Planned Parenthood Federation of America.

“If these unconstitutional measures had gone into effect, doctors would have been prevented from using their best medical judgment to provide patients with care based on their specific individual needs. This law represented an egregious government intrusion into individuals’ private medical decisions, and we are very pleased that it will not go into effect.”

The full decision is here.