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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.

Commentary

There are two excellent reads over on the main Policy Watch site today that you should check out if you haven’t already.

#1 is this excellent and sobering analysis of North Carolina’s new fracking rules and the shortcomings therein by Sarah Kellogg of of the environmental advocacy group Appalachian Voices. As Kellogg writes before outlining the detailing the failures:

The North Carolina Mining and Energy Commission (MEC) issued its final vote on proposed changes to the rules regulating the process of hydraulic fracturing for natural gas (i.e. fracking) last Friday. As you’ve probably heard by now, the panel voted unanimously to approve the rule set.

What you may not know is that between July 14 and Sept. 30, the MEC received 217,000 public comments on more than 100 draft rules regarding safety standards for fracking in the state. More than 2,000 North Carolinians attended the commission’s four public hearings, and the vast majority of speakers opposed fracking and asked for stronger rules. The MEC’s response, written in a hearing officer’s report released two weeks ago, showed a considerable lack of consideration for public comments, a fact that disappointed concerned citizens and advocates across the state. Almost all of the recommendations fell short of what the public overwhelmingly asked for, and the few recommendations that strengthen the rules do so quite minimally.

Must read #2 is this news story by NC Policy Watch Reporter Sarah Ovaska about some equally troubling developments at a public charter school in western North Carolina:

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School-vouchersAs an excellent essay in this morning’s edition of Raleigh’s News & Observer by veteran education policy expert Greg Malhoit makes clear, North Carolina is on the verge of commencing a long, slow-motion disaster with its wrongheaded plunge into the world of school vouchers.

As Malhoit explains in some detail, two of the Wake County schools likely to receive significant public funds if the program goes ahead — Victory Christian Center and  the Al Iman School — make no pretense of offering a secular education. These are explicitly religious schools with specific missions of teaching and indoctrinating students into very specific religious belief systems. Moreover, as he notes: Read More

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Good news last night in Boone. This is from the ACLU of North Carolina:

Watauga Board Votes to Keep “The House of the Spirits” in Honors High School Curriculum
ACLU of North Carolina Joined Parents, Students and Community Members Earlier in the Day to Rally in Support of the Freedom to Read  

BOONE, N.C. – The Watauga County Board of Education tonight voted 3-2 to keep Isabel Allende’s “The House of the Spirits” in the county’s public school curriculum for sophomore honors English students after a challenge to the board had been brought. Two board-sanctioned committees had previously voted unanimously to keep the book in the curriculum.  

Chris Brook, Legal Director for the ACLU-NC Legal Foundation, released the following statement: Read More

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Moral MarchThe following essay was submitted to NC Policy Watch by the Rev. Jennifer Butler, CEO of Faith in Public Life, a national organization based in Washington, DC that is dedicated to “advancing faith in the public square as a powerful force for justice, compassion and the common good.”

Attacks on Moral March miss their mark
By Rev. Jennifer Butler

The recent criticisms leveled by newspaper columnist J. Peder Zane and others against Rev. William Barber II for using religious and moral language to inspire political change displayed a disregard for history and even contempt for the role of faith in public life.

As we commemorate the 54th anniversary of the Greensboro sit-in that sought to end legal segregation, let’s never forget that the Civil Rights movement was a religiously inspired, prophetic movement led by pastors and diverse people of faith. The late Franklin McCain, one of the Greensboro Four, said the question that inspired him and three other students at the Agricultural and Technical College (AT&T) of North Carolina in Greensboro was this: “At what point does a moral man act against injustice?”

Religious leaders have been central to movements that drive political change. The struggle to end the evil of slavery, create fair labor practices and secure equal rights for all citizens were profound moral causes. We are stronger as a country because determined people of faith challenged political and social threats to human dignity. The unfinished task of living up to the ideals of our democracy and stirring the conscience of Americans continues today.

Rev Barber is raising important and often uncomfortable questions about educational disparities, voting rights and economic injustice that impact not only North Carolinians, but the entire nation. Here are some telling signs of the times. CEOs often earn as much in a single day as their workers make in an entire year. Minimum wage jobs don’t pay enough to keep many hardworking Americas out of poverty. Half of all workers are not allowed to take a sick day without being docked pay or potentially losing their job. Congress is slashing food nutrition programs for struggling families even as corporations are coddled with tax breaks. These are moral scandals. Faith leaders will continue to speak truth to power.

The separation of church and state is meant to protect both religion and democracy. Because our government does not enforce an official religion, America has a diverse religious marketplace. Speaking from deeply held beliefs about the issues that affect us all is a healthy sign of pluralism and strength, not confining moralism. Those who argue that religious leaders should be silent in public debates have not only failed to learn the lessons of the past, they deprive us of powerful voices that can help forge a more just future.

For more information on the organization Faith in Public Life, visit the website by clicking here.