This morning the U.S. Supreme Court declined to hear an appeal from North Carolina, seeking to revive a controversial ultrasound requirement before a woman may obtain an abortion. The court’s refusal to hear the case thus leaves intact a decision from the lower federal appeals court, finding that the 2011 North Carolina law was “ideological in intent” and violated doctors’ free-speech rights.
The law, versions of which have been passed in 23 other states, required doctors and 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 other groups challenged the law, which was enjoined by a lower federal court and then struck down by the Fourth Circuit Court of Appeals last winter.
Federal appeals courts have upheld similar laws from Texas and South Dakota, creating a split in the courts that sometimes leads the high court to weigh in. But not this time. The one-sentence order, as is the custom, offered no reasoning. Justice Antonin Scalia voted to hear the appeal. The refusal to hear the appeal does not impact any other state laws beyond North Carolina’s, which remains invalid.
Last year we published some of the most compelling quotes from the unanimous appeals court decision, authored by Judge J. Harvie Wilkinson III, finding that the ultrasound law is a compelled speech provision that violates the First Amendment rights of medical providers. A highlight from that opinion, which remains undisturbed today:
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.
Correction, June 15, 2015: The headline on this post originally stated that women in North Carolina do not have to get ultrasounds before their abortions. They do.
