4th Cir. Strikes Down |N.C. Abortion Law

(CN) - A North Carolina law requiring abortion providers to perform an ultrasound, display the sonogram, and describe the fetus to a woman seeking an abortion is unconstitutional, the 4th Circuit ruled.

The North Carolina General Assembly passed the Woman's Right to Know Act over a gubernatorial veto in July 2011. The Act amended Chapter 90 of the North Carolina General Statutes, which governs medical and related professions, adding a new article regulating the steps that must precede an abortion.

Several physicians and abortion providers filed suit after the Act's passage but before its effective date, asking the court to enjoin its enforcement and declared unconstitutional.

In October 2011, U.S. District Judge Catherine Eagles issued a preliminary injunction barring enforcement of one provision of the Act, the requirement to display the sonogram, and allowed the plaintiffs to amend their complaint.

The plaintiffs third amended complaint asserted that the Act's "Display of Real-Time View" requirement violated the physicians' 1st Amendment right to free speech, and the patients' 14th Amendment rights to due process.

Both parties moved for summary judgment, and Judge Eagles decided for the plaintiffs, entering a permanent injunction against the state.

On Thursday, the 4th Circuit upheld Eagles' decision to strike down law.

Writing for the three-judge panel, U.S. Circuit Judge J. Harvie Wilkinson III said, "The Requirement 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 is to convince women seeking abortions to change their minds or reassess their decisions," he added.

Later, Wilkinson wrote, "Though the information conveyed may be strictly factual, the context surrounding the delivery of it promotes the viewpoint the state wishes to encourage. As a matter of policy, the state may certainly express a preference for childbirth over abortion ... and use its agents and written materials to convey that message. However, the state cannot commandeer the doctor-patient relationship to compel a physician to express its preference to the patient ..."

"Transforming the physician into the mouthpiece of the state undermines the trust is necessary for facilitating healthy doctor-patient relationships and, through them, successful treatment outcomes," he said.

North Carolina Attorney General Roy Cooper has announced he will appear the case to the Supreme Court, citing the decision of another federal appeals court to uphold a similar ultrasound requirement in Texas.

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