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.
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