US Court of Appeals: No to ultrasound abortion provision

by Anne Blythe and Craig Jarvis, News and Observer, December 22, 2014.

A North Carolina law that forced abortion providers to show ultrasounds to women seeking to terminate their pregnancies – and describe the images in detail – “is ideological in intent,” a federal appeals court ruled Monday, and a violation of free-speech rights.

The ruling by a three-judge panel of the U.S. 4th Circuit Court of Appeals was written by Judge J. Harvie Wilkinson III, who was appointed to the bench in 1984 by President Ronald Reagan. The unanimous decision upheld a ruling in January by U.S. District Judge Catherine Eagles.

Eagles, appointed to her post in 2010 by President Barack Obama, described the provision in the 2011 N.C. “Woman’s Right to Know” act as a “one-size-fits-all” attempt to “compel these providers to deliver the state’s message in favor of childbirth and against abortion.”

The law was approved in 2011, when Republicans had control of both General Assembly chambers, but not the governor’s office. It became law when lawmakers overrode a gubernatorial veto.

The 4th Circuit panel not only described the law’s ultrasound provision as “ideological in intent and in kind”: The judges also contended the means used “extend well beyond those (that) states have customarily employed to effectuate their undeniable interests in ensuring informed consent and protecting the sanctity of life in all its phases.”

The law would have required abortion providers to display the ultrasound image and describe it even if the woman rejected the idea.

“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,” Wilkinson wrote.

Reactions to the decision 

The appeals court ruling brought quick praise from abortion-rights advocates and criticism from advocates of ultrasound laws.

“Exam rooms are no place for propaganda and doctors should never be forced to serve as mouthpieces for politicians who wish to shame and demean women,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.

It was unclear on Monday whether supporters of the 2011 act would appeal to the U.S. Supreme Court, and if so whether the justices would take up the case.

Jan. 22 marks the 42nd anniversary of the landmark Roe v. Wade U.S. Supreme Court decision, which made abortion legal in the U.S.

Since then, the decision has become a political dividing line. Beginning in the mid-1990s abortion critics began the push to make ultrasounds part of abortion service.

According to the Guttmacher Institute, a research organization that supports abortion access:

• Twenty-three states regulate the provision of ultrasound by abortion providers.

• Twelve states require verbal counseling or written materials to include information on accessing ultrasound services.

• Three states have mandates requiring an abortion provider to perform an ultrasound on each woman seeking to terminate a pregnancy and to offer the woman an opportunity to view the image.

Tami Fitzgerald, executive director of the N.C. Values Coalition, expressed disappointment that the North Carolina ultrasound provision was struck down.

Chief Judge William B. Traxler Jr. and Judge Allyson K. Duncan were on the appellate panel with Wilkinson.

“Abortion is a life-altering decision for a woman and a life-ending decision for her unborn child,” Fitzgerald said after hearing about the unanimous decision. “The abortion industry wants to keep women from receiving this scientific information, so they can keep lying to women about the fact that abortion kills their unborn child. The 4th Circuit’s decision has placed profit above truth and science.”

N.C. Attorney General Roy Cooper, a Democrat believed to be among the party’s gubernatorial candidates in 2016, said he opposed the law but had a duty to defend it.

Other provisions of the 2011 law have not been legally challenged and remain in place.

Abortion-access advocates described the ultrasound provision as one that attempted to give too much sway to politicians.

“Abortion in America today is safe, and no doctor should be forced to deliver government mandated information that has nothing to do with promoting women’s health,” Melissa Reed, executive director of Planned Parenthood Action Fund of Central North Carolina, said in a statement. “Politicians are not medical experts, but politicians have written this law with the ultimate goal of restricting access to safe, legal abortion.”

Bishop Michael Burbidge of the Catholic Diocese of Raleigh called the ruling “a disservice to women.”

“An ultrasound is a window into the womb of the mother, and the image of her child provides her with valuable information,” Burbidge said in a statement.