A panel of the 4th Circuit Court of Appeals voted today to strike down a highly controversial North Carolina law requiring doctors and ultrasound technicians to perform an ultrasound, display the image of the sonogram, and specifically describe the fetus to any pregnant woman seeking an abortion, even if the woman actively “averts her eyes” and “refuses to hear.” The American Civil Liberties Union, the Center for Reproductive Rights, Planned Parenthood Federation of America, and others challenged the law, which was enjoined last year by a lower federal court.
Today, in a unanimous decision authored by Judge J. Harvie Wilkinson III, a three-judge panel affirmed a lower court’s determination that the law is a compelled speech provision that violates the First Amendment rights of providers. The language in Judge Wilkinson’s opinion is striking in its solicitude for the uniquely vulnerable half-dressed woman on an examining table, forced to listen to information she does not want to hear. It also addresses head-on conflicting rulings from the 5th and 8th Circuits that have upheld such provisions.
Perhaps the most striking part of the opinion comes at the very end, where the court starkly contrasts the standard informed-consent conversation between a physician and her patient with the statute enacted in North Carolina:
Informed consent frequently consists of a fully-clothed conversation between the patient and physician, often in the physician’s office. It is driven by the “patient’s particular needs and circumstances” … so that the patient receives the information he or she wants in a setting that promotes an informed and thoughtful choice. 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. Forcing this experience on a patient over her objections in this manner interferes with the decision of a patient not to receive information that could make an indescribably difficult decision even more traumatic and could “actually cause harm to the patient.” … 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.
In July 2011, the North Carolina General Assembly passed the Woman’s Right to Know Act over then-Gov. Beverly Perdue’s veto. Doctors and abortion providers filed suit, asking that the act be enjoined. One provision of the law, the “Display of Real-Time View Requirement,” forces doctors or technicians to perform an ultrasound on any woman seeking an abortion at least four but not more than 72 hours before the abortion is to take place. They must show the sonogram so that the woman can see it and describe the fetus in detail, “including the presence, location, and dimensions of the unborn child within the uterus and the number of unborn children depicted.” The doctor must offer to let the woman hear the heartbeat. She can refuse. The opinion notes that the woman may “avert her eyes from the displayed images” and “refuse to hear the simultaneous explanation and medical description by presumably covering her eyes and ears.”
Doctors who violate the act are liable for damages and may lose their licenses to practice in North Carolina. A lower federal court found that the Display of Real-Time View Requirement violated physicians’ First Amendment rights to free speech, and today the higher panel agreed.
Wilkinson noted that, “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 of the Display of Real-Time View Requirement is to convince women seeking abortions to change their minds or reassess their decisions.” He added that, “this Display of Real-Time View Requirement explicitly promotes a pro-life message by demanding the provision of facts that all fall on one side of the abortion debate—and does so shortly before the time of decision when the intended recipient is most vulnerable.”
The panel then turned to the state’s claim that the ultrasound script is merely a regulation of the practice of medicine that need only satisfy the lowest level of judicial review, and the panel rejected the view that doctors have extremely limited speech protections: “This statutory provision interferes with the physician’s right to free speech beyond the extent permitted for reasonable regulation of the medical profession, while simultaneously threatening harm to the patient’s psychological health, interfering with the physician’s professional judgment, and compromising the doctor-patient relationship.”
Wilkinson noted that the Supreme Court has recognized a state interest in maintaining “the integrity and ethics of the medical profession,” which includes promoting a healthy doctor-patient relationship. He explained that informed consent laws are grounded in the principle of self-determination, such that each patient has the information she needs to meaningfully consent to medical procedures: “The physician’s role in this process is to inform and assist the patient without imposing his or her own personal will and values on the patient.” Wilkinson contrasted the informed consent provision upheld by the court in 1991 in Planned Parenthood v. Casey with the ultrasound provision passed by North Carolina in 2011. As he put it,
The most serious deviation from standard practice is requiring the physician to display an image and provide an explanation and medical description to a woman who has through ear and eye covering rendered herself temporarily deaf and blind. This is starkly compelled speech that impedes on the physician’s First Amendment rights with no counterbalancing promotion of state interests. The woman does not receive the information, so it cannot inform her decision. … And while having to choose between blindfolding and earmuffing herself or watching and listening to unwanted information may in some remote way influence a woman in favor of carrying the child to term, forced speech to unwilling or incapacitated listeners does not bear the constitutionally necessary connection to the protection of fetal life. Moreover, far from promoting the psychological health of women, this requirement risks the infliction of psychological harm on the woman who chooses not to receive this information. She must endure the embarrassing spectacle of averting her eyes and covering her ears while her physician—a person to whom she should be encouraged to listen—recites information to her. We can perceive no benefit to state interests from walling off patients and physicians in a manner antithetical to the very communication that lies at the heart of the informed consent process.
The panel concluded that the “state cannot commandeer the doctor-patient relationship to compel a physician to express its preference to the patient.” And that “transforming the physician into the mouthpiece of the state undermines the trust that is necessary for facilitating healthy doctor-patient relationships and, through them, successful treatment outcomes.” The decision reminded us that the “patient seeks in a physician a medical professional with the capacity for independent medical judgment that professional status implies. The rupture of trust comes with replacing what the doctor’s medical judgment would counsel in a communication with what the state wishes told. It subverts the patient’s expectations when the physician is compelled to deliver a state message bearing little connection to the search for professional services that led the patient to the doctor’s door.”
Finally, the court noted that the law doesn’t even include exceptions for a physician’s “therapeutic privilege” judgment about what is best for a patient, particularly “for women who have been victims of sexual assaults or whose fetuses are nonviable or have severe, life-threatening developmental abnormalities, having to watch a sonogram and listen to a description of the fetus could prove psychologically devastating.”
This is a careful, well-reasoned opinion about when an abortion regulation goes far beyond the bounds of ostensibly protecting maternal or fetal health and becomes a traumatic event in its own right; an important statement about what happens when the state inserts itself—in this case, quite literally—into an intimate discussion between a woman, her doctor, and her own body. That it was written by the judge who was shortlisted for John Roberts’ seat as Chief Justice of the Supreme Court makes it all the more remarkable and powerful.