Courts agree GOP overstepped abortion law

by Patrick Gannon, The Insider, January 5, 2015.

Critics of Republican leadership in the General Assembly are often quick to use words such as "extreme" to describe policies pushed by the majority. Republicans use the same rhetoric about Democrats' ideas.

Sometimes, critics exaggerate to make a point or to make the other side look bad. And sometimes, what's extreme to one person is common sense to another. But in the case of abortion ultrasound requirements, one of the nation's highest courts sure sounds like it agrees with Republicans' critics.

In 2011, the then-new GOP majority in Raleigh passed the "Woman's Right to Know Act," which includes a provision obligating doctors to perform ultrasounds on women seeking abortions at least four hours but not more than 72 hours before the procedure. Under the law, the physician must show the pregnant woman the sonogram and describe the fetus in detail, as well as offer to allow her to hear the heartbeat.

The law spells out that pregnant women can cover their eyes or ears if they don't want to see the sonogram or hear doctors' descriptions of their unborn babies. Physicians who violate the law would be liable for damages, may be prohibited from providing future abortions and could lose their medical licenses.

The bill passed almost entirely along party lines in 2011. Then-Gov. Bev Perdue, a Democrat, vetoed it, but it was overridden and became law, only to be challenged in court, where judges have prevented the provision in question from taking effect.

Perdue said in her veto message that the bill contains provisions "that are the most extreme in the nation" in terms of interfering with the patient-doctor relationship.

"Physicians must be free to advise and treat their patients based on their medical knowledge and expertise and not have their advice overridden by elected officials seeking to impose their ideological agenda on others," Perdue said.

That's similar to what the 4th U.S. Circuit Court of Appeals decided in a ruling just before Christmas, in which it found the ultrasound requirement unconstitutional.

The General Assembly's intent in passing the legislation was to discourage abortions or at least cause women to reconsider their decisions. Put simply, the court decided that protecting fetal life is a legitimate state interest, as many courts have held, but that the ultrasound requirement infringes on the doctor's right to free speech, while also potentially damaging the patient's psychological health, which the state also has a duty to protect.

According to the 37-page decision, the requirement "promotes a pro-life message" by requiring doctors to give information to patients that all falls on one side of the abortion debate and does so when the patient is most vulnerable.

The court also opined that forcing doctors to provide information to patients covering their eyes and ears amounts to "starkly compelled speech," which is prohibited by the First Amendment. Also, it doesn't provide information to the patient that could be helpful in making an informed decision about whether to terminate her pregnancy, because she has her eyes and ears covered.

The court also said that having to watch a sonogram could prove "psychologically devastating," particularly to sexual assault victims or to women whose fetuses are nonviable or have developmental abnormalities.

And that – at least to those women – would be extreme.

Attorney General Roy Cooper, who is personally opposed to the ultrasound requirement, has said the state will ask the U.S. Supreme Court to review the decision because other circuit courts have rendered conflicting decisions on similar topics.