North Carolina forced ultrasound law struck down on First Amendment grounds

The North Carolina legislature ordered doctors to show and talk about an ultrasound before a woman has an abortion. A federal judge ruled that the law violates the First Amendment right of physicians.

Gerry Broome/AP
Spectators observe from the gallery of the House chamber during a floor debate at the General Assembly in Raleigh, N.C., in July. The House was debating abortion legislation.

The Woman’s Right to Know Act of 2011 demands that North Carolina physicians show and talk about a fetal ultrasound before a woman can have an abortion, but that mandate violates the First Amendment rights of doctors, a federal judge ruled late Friday.

In 2011, the Republican-led North Carolina legislature overrode then Democrat Gov. Bev Perdue’s veto of the law. The ideological bent of the law is ultimately what stumped US District Judge Catherine Eagles, who ruled Friday that the legislature can’t force doctors to forego a patient’s interest in order to utter words predicated on politics.

“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 decision is part of a patchwork set of court rulings in the wake of a wave of anti-abortion measures that have swept the country in the last few years. Critics have lumped the legislative charge together as the “war on women,” a phrase used like a hammer by Democrats against Republicans during the 2012 presidential election.

The rancorous fetal ultrasound debate has had political reverberations as well in states like Virginia, after women’s groups – and subsequently many voters – objected to a proposed law that could force doctors to give women an intravaginal ultrasound ahead of an abortion. Gov. Bob McDonnell ultimately signed an ultrasound bill that did not mandate that invasive procedure.

While so-called “personhood” amendments that would give Constitutional protections to fetuses have failed, legislatures in 22 states passed 70 laws intended to curb abortions by putting pressure on doctors and patients. US doctors have performed over 54 million abortions since the 1973 Roe v. Wade decision that legalized the practice.

Late last fall, a federal district court judge struck down a new Texas law that mandated that doctors have admitting privileges at hospitals, a move that threatened to shutter most of the state’s abortion clinics. But a federal appeals court only days later overturned that verdict, and the clinics closed after all. The US Supreme Court declined to take the case.

In the ruling that was overturned, US District Judge Lee Yeakel called abortion “the most divisive issue to face this country since slavery.” North Carolina, too, has passed a similar hospital admittance law, but it has not yet been implemented and thus not challenged.

In his October ruling on the new Texas law, Judge Yeakel hinted at the core legal issues in play in many of the more recent lawsuits over state attempts to curb abortions. He wrote that regulations that allow the state to express an anti-abortion message are legal, as long as they don’t present a “substantial obstacle to the woman's exercise of the right to choose." 

The North Carolina ruling was widely hailed by abortion rights groups as a victory for women’s rights.

Anti-abortion activists saw the ruling as a perversion of the First Amendment’s guarantees.

“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,” Tami Fitzgerald, director of the North Carolina Values Coalition, told the Raleigh News & Observer in an email.

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