Richmond, Va. — The 4th U.S. Circuit Court of Appeals on Monday declared as unconstitutional a North Carolina law requiring abortion providers to show a woman an ultrasound and describe the images in detail four hours before she can have an abortion.
The decision upholds a lower-court ruling from January and likely will send the issue to the U.S. Supreme Court. The 5th U.S. Circuit Court of Appeals upheld a similar law in Texas, and spokeswoman Noelle Talley said the North Carolina Attorney General's Office plans to petition the high court to take up the cases to resolve the different rulings.
"This compelled speech, even though it is a regulation of the medical profession, is ideological in intent and in kind," the 4th Circuit judges wrote in their 37-page opinion. "The means used by North Carolina extend well beyond those states have customarily employed to effectuate their undeniable interests in ensuring informed consent and in protecting the sanctity of life in all its phases."
The law requires abortion providers performing an ultrasound to place the image in the woman’s line of sight. The provider would then be required to describe the embryo or fetus in detail, even if the woman asked the doctor not to, and to offer the woman the opportunity to hear the fetal heartbeat.
The measure provided an exception only in cases of a medical emergency, and any physician who didn't comply with the requirement faced the loss of his or her medical license.
The American Civil Liberties Union, the Center for Reproductive Rights and Planned Parenthood Federation of America challenged the law, known as the Women's Right to Know Act, which legislators passed in 2011 over then-Gov. Beverly Perdue's veto.
U.S. District Judge Catherine Eagles stayed the narration provision of the law three months after the veto override, saying it likely violated the First Amendment. Other provisions, including the requirement for an ultrasound and a 24-hour waiting period before an abortion, were allowed to go into effect.
"The First Amendment not only protects against prohibitions of speech, but also against regulations that compel speech," the appellate judges wrote. "A regulation compelling speech is by its very nature content-based, because it requires the speaker to change the content of his speech or even to say something where he would otherwise be silent."
The ruling was quickly hailed by abortion-rights supporters and criticized by opponents.
“We’re thrilled that the appellate court rejected this unconscionable attempt to intrude on the doctor-patient relationship,” Nancy Northup, president and chief executive of the Center for Reproductive Rights, said in a statement. “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.”
"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."
"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 Fourth Circuit’s decision has placed profit above truth and science," Tami Fitzgerald, director of the North Carolina Values Coalition, said in a statement.
"We are highly disappointed in the Fourth Circuit's opinion and continue to believe that the display and description of the unborn child by the physician through an ultrasound is vital to ensuring truly informed consent," John Rustin, president of the North Carolina Family Policy Council, said in a statement. "We pray that the U.S. Supreme Court will take up this case on appeal and reverse the lower courts' misguided rulings."
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.