Federal judge strikes down NC's ultrasound abortion law

by Anne Blythe and Craig Jarvis, Charlotte Observer, January 17, 2014.

Doctors in North Carolina cannot be forced to show women ultrasound images and describe them in detail before performing an abortion, a federal judge ruled Friday. The decision was lauded by civil rights advocates and criticized by supporters of the law.

The provision of a 2011 North Carolina law required abortion providers to display ultrasound images so women can see them and then describe the dimensions of an embryo or fetus and other particulars.

U.S. District Judge Catherine Eagles, who was nominated to the court by President Barack Obama, said the provision is overly broad and a free speech violation. She described the clause as a “one-size-fits-all provision” that is “an impermissible attempt to compel these providers to deliver the state’s message in favor of childbirth and against abortion.”

“The Supreme Court has never held that a state has the power to compel a health care provider to speak, in his or her own voice, the state’s ideological message in favor of carrying a pregnancy to term, and this Court declines to do so today,” Eagles wrote in her ruling.

The ruling, made public late Friday afternoon, was immediately lauded by attorneys who had challenged the provision on behalf of several North Carolina physicians and abortion providers and a host of state and national organizations supporting abortion rights.

“Today’s ruling marks a major victory for North Carolina women and sends a message to lawmakers across the country: It is unconstitutional for politicians to interfere in a woman’s personal medical decisions,” Cecile Richards, Planned Parenthood Action Fund president, said in a statement.

State legislators who shepherded the 2011 law through the General Assembly said they disagreed with Eagles’ ruling and hoped to persuade the state to appeal.

Noelle Talley, a spokeswoman for N.C. Attorney General Roy Cooper, said state attorneys were reviewing the ruling and had not decided the next course of action.

N.C. House Majority Leader Paul Stam, a Republican from Wake County and advocate of the ultrasound provision, said he was confident the state would appeal.

A case of free speech

The law was one of the first major pieces of legislation pushed through by the newly elected Republican General Assembly. Then-Gov. Bev Perdue, a Democrat, vetoed it, but the legislature overrode the veto in July 2011.

Before the year was out, six organizations challenged the law in a federal lawsuit: the ACLU of North Carolina Legal Foundation, the Center for Reproductive Rights, Planned Parenthood of Central North Carolina, Planned Parenthood Health Systems, Planned Parenthood Federation of America and the American Civil Liberties Union. They represented several North Carolina physicians and their patients.

In 2011, Eagles temporarily blocked the ultrasound requirement, saying that the plaintiffs in the case had strong arguments about free speech issues that should be weighed in the courts of law.

At a hearing in August, Eagles questioned attorneys for both sides about their key arguments and took the matter under advisement.

As Eagles weighed the issues in North Carolina, courts across the country were dealing with other abortion-related issues.

In November, the U.S. Supreme Court declined to take up a challenge to an Oklahoma Supreme Court ruling declaring a similar ultrasound law unconstitutional. The nation’s highest court also opted earlier that November not to take up another Oklahoma Supreme Court decision declaring illegal a law that effectively banned all drug-induced abortions.

Rulings mixed

Rulings in Texas, though, have buoyed the hopes of abortion opponents who have launched a concerted national effort in recent years to enact restrictions that many contend would erode rights offered in the landmark Roe v. Wade decision four decades ago.

In August, Gov. Pat McCrory signed a bill that abortion-rights advocates contend will essentially close down the state’s abortion clinics.

While it does not require, it authorizes the state to apply any standard for outpatient surgery centers – “while not unduly restricting access” – also to abortion clinics. Since those regulations have not yet been written, abortion-rights advocates are taking a wait-and-see approach before challenging them in court.

Advocates of the 2011 law requiring the narrated and detailed ultrasound at least four hours before an abortion noted that it included a provision that allowed women not to watch or listen to the presentation.

But challengers of the provision focused on free speech issues and argued that the law directed the speech of health care providers

Paige Johnson with Planned Parenthood of Central North Carolina said opponents of the law weren’t sure what to expect from the court, since recent rulings in other abortion lawsuits have been mixed.

“This is a terrific victory for women in North Carolina,” Johnson said. “What was struck down was forcing a doctor to describe to a woman what she sees. I think anyone who hears that the government is encroaching on that level in a patient-doctor relationship is appalled.”

“We think it’s a great win for the First Amendment,” said Julie Rikelman, litigation director of the Center for Reproductive Rights. “What the judge said here is that the state is not allowed to use doctors to force its own ideology onto patients, especially when the doctor feels that doing that could harm the patients.”

Tami Fitzgerald, executive director of the NC Values Coalition, had a different take.

“This is a sad day for women’s health in North Carolina,” Fitzgerald said in an emailed statement. “The founders would roll over in their graves if they knew that the First Amendment is being used to keep women from receiving sound medical advice about their own bodies.”

Since 1994, the N.C. Department of Health and Human Services has required by regulation an ultrasound for any patient who is scheduled for an abortion procedure.

Bishop Michael Burbidge of the Catholic Diocese of Raleigh said he was saddened by the judge’s ruling, saying in a statement, “To deny a woman from receiving the truth, especially with regard to a decision which will impact her life and the life of her unborn child, is to deny her the freedom of information that all people expect from their health care providers.”