Fact check: Would NC abortion bill 'govern' doctor-patient conversations?

A new North Carolina bill requires practitioners to "confirm" that their patients aren't seeking an abortion because they're unhappy with the unborn child's sex, race, or Down Syndrome diagnosis. PolitiFact examines the bill sponsor's claims about how that might work.

Posted 8:18 p.m. Jun 17, 2021 — Updated 9:07 p.m. Jun 17, 2021

Paul Specht

, PolitiFact reporter

A proposed North Carolina abortion law has critics concerned about how it might affect the doctor-patient relationship.

House Bill 453 aims to stop people from having abortions because they’re unhappy with the child’s sex, race, or Down Syndrome diagnosis.

Bill supporters say it would help prevent discrimination. Meanwhile, critics worry that it could discourage patients from seeking abortions if they feel their motives will be subject to scrutiny.

Sex selection is already banned in North Carolina. This bill would not only ban abortions sought for race selection or for Down Syndrome, but would go a step further than the current law by requiring practitioners to “confirm” that the patient’s motives aren’t discriminatory.

In a June 2 Senate Judiciary Committee meeting, state Sen. Natasha Marcus (D-Mecklenburg) asked bill sponsor Dean Arp (R-Union) a series of questions about how the bill might affect a doctor’s interactions with her patient.

Arp suggested the bill isn’t designed to be intrusive, saying at different times:

“We’re not requiring the doctors to say or do anything here. … We’re not controlling the speech of the doctor. … Quite simply, this bill doesn’t compel doctor’s speech at all. … We don’t govern the conversation between the doctor and the patient.”

Arp later corrected his statement about doctors not being required to “say or do anything,” since the bill would require practitioners to submit a report to the state’s health department. However, given the concerns of advocates, we wondered about his other statements.

Would the bill “control” or “compel” a doctor’s speech, or “govern the conversation between the doctor and the patient?”

Put simply, the bill does not tell doctors specifically what to say. However, experts believe it puts doctors in the position of asking patients about their motives for seeking abortions, or else risk puttting their own professional careers on the line by making a judgement call about the patient’s motives without having asked.

Part of a trend

North Carolina’s bill is similar to others that have been introduced and even enacted that attempt to stop women from having abortions if they’re unhappy with their baby’s sex, race or medical diagnosis. PolitiFact partner WRAL has covered North Carolina’s bill as it moved through the legislature to Gov. Roy Cooper’s desk, where it currently sits unsigned.

North Carolina’s bill falls in the middle of the abortion law strictness spectrum, with Arkansas on the stricter end and Ohio having more lenient language.

NC lawmakers pass ban on abortions because of Down syndrome

The Arkansas law, which the Eighth U.S. Circuit Court of Appeals struck down, specifically required a practitioner to “ask the pregnant woman if she is aware of any test results, prenatal diagnosis, or any other evidence that the unborn child may have Down Syndrome.”

Ohio’s law, which is also working its way through the courts, blocks practitioners from performing abortions “if the (practitioner) has knowledge” that the patient is seeking an abortion for discriminatory reasons. It doesn’t instruct practitioners to question their patients or use the word “confirm.”

North Carolina’s bill is similar to an abortion law in Mississippi, which requires doctors to “confirm” a patient’s motives but doesn’t instruct them what to ask. We wanted to know how the bill affects Mississippi practitioners. So we called and emailed the Jackson Women’s Health Organization, which is the only remaining abortion clinic left in Mississippi.

Nora Franco, a spokeswoman for the Center for Reproductive Rights, said Mississippi’s bill has definitely prompted new conversations between practitioners and patients.

“The law has forced the Mississippi clinic to confirm with their patients they are not seeking abortions for prohibited reasons and to turn away some patients — which they would not have had to do absent this law, which, again, does nothing to address the discrimination politicians claims it addresses,” she said.

What is ‘compelled speech?’

In a 25-minute telephone interview with PolitiFact, Arp said bill authors tried “desperately” not to dictate how medical practices should operate. He contrasted the bill to a previous North Carolina law known as the Woman’s Right to Know Act.

That law, passed in 2011, required practitioners to show their patient an ultrasound and describe the images in detail before performing an abortion. The 4th U.S. Circuit Court of Appeals in 2014 struck down the law on grounds that it “compelled speech” and violated the First Amendment. That ultrasound law “forces physicians to say things they otherwise would not say,” a judge wrote. The U.S. Supreme Court later declined to take up the case.

Appeals court strikes down NC abortion provision

Arp told PolitiFact that he doesn’t view North Carolina’s latest bill as compelled speech because it doesn’t specifically tell doctors to say anything. The bill instructs practitioners to find out the answer to the question: Did the patient seek an abortion for discriminatory reasons? But it doesn’t tell them how to answer the question.

Where some see the bill’s vague directive as a negative, Arp sees it as a positive.

“How they determine (the answer) totally lies within themselves and I imagine each doctor would be different in their comfort level in addressing that question,” Arp said. “Nothing in here stops a doctor from saying what a doctor wants and nothing in here compels the doctor to tell a patient anything.”

“I don't doubt that the doctor could ask (about a patient’s motives) if the doctor felt that that's what they needed to do to be accurate and conform to the reporting mechanism,” he said.

Alternatively, he suggested a doctor could get around having the conversation with the patient if they presented the patient with, say, a paper questionnaire.

“It could be a form that they give on (patient) intake, where people go down through and they just say check, check, check, check, check,” he said.

Even if the patient were presented with such a form, that does not mean that the patient would answer it, which would leave the ball in the physician’s court to inquire through conversation.

And a judge may not share Arp’s view that the bill doesn’t qualify as compelled speech, said Laurie Sobel, an attorney and associate director of women’s health policy for the Kaiser Family Foundation. The foundation studies health and healthcare policies.

“The word ‘confirm’ could reasonably be interpreted to compel speech to ask,” Sobel said.

Unless a doctor asks about a patient’s motives, or the patient divulges them voluntarily, she said practitioners are left to make a judgement on their own. “I don’t think the medical record does anything to show intent,” Sobel said.

Confirming motives

Multiple experts told us they don’t see how a North Carolina practitioner would “confirm” a patient’s motives without asking them.

Not only does the bill require practitioners to confirm that their patient doesn’t have discriminatory motives, it also requires practitioners record “a statement” saying that they have “reason to believe that the woman did not seek the abortion” for those specified reasons.

Experts said the fact that a patient’s motives would be recorded by the state puts extra pressure on practitioners to accurately document them, and more likely to directly ask about them.

“If the outcome (of noncompliance with the law) is a penalty, and then there's other pieces of documentation that have to happen, you’re saying, ‘You have to talk to the patient about this,’” said Elizabeth Nash, principal policy associate for the Guttmacher Institute.

Dr. Jonas Swartz, an obstetrician who practices at Duke Health, pointed out that the bill changes the state’s expectations of doctors under the current law prohibiting certain abortions.

The current law says, “Nothing in this section shall be construed as placing an affirmative duty on a physician to inquire as to whether the sex of the unborn child is a significant factor in the pregnant woman seeking the abortion.” The proposed law crosses out that part.

“As a clinician, my understanding of what (the bill) says is that I would have to ask the patient if she were having an abortion for any of these reasons and then document their response,” Swartz said in a phone interview, speaking on his personal behalf and not of the hospital.

A practitioner may feel even more pressure to record a patient’s exact reason for an abortion if the unborn child has multiple health issues in addition to Down Syndrome, said Mary Ziegler, a reproductive rights expert at Florida State University.

“Most physicians in that situation might feel like they have to ask to avoid potential legal liability,” Ziegler said in a phone interview.

Overall, the bill “is not straightforward. It’s clearly not a situation where you can say firmly that it doesn’t require anyone to do anything and it isn’t compelled speech. It’s ambiguous,” Ziegler said. “Whether a bill like this compels speech is something lawyers would disagree about and courts will probably have to resolve.”

Our ruling

Arp said North Carolina’s abortion bill would not “control” or “compel” the speech of the doctor and that the bill does not “don’t govern the conversation between the doctor and the patient.”

Arp has a point that the bill doesn’t tell abortion practitioners specifically what to say to patients about this law.

However, it’s misleading to say the bill doesn’t govern a conversation between a doctor and patient. By ordering doctors to “confirm” that their patients aren’t seeking abortions for discriminatory reasons, the bill requires a practitioner to make an inquiry of some kind.

Multiple experts told us doctors will either interpret the bill to mean they must ask patients about their motives. And, even if they don’t interpret the bill that way, they’ll feel obligated to ask in order to protect themselves from legal liability.

The statement contains an element of truth but ignores critical facts that would give a different impression. We rate the claim Mostly False.

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