March 4, 2015
By Lauren Tracy, Senior Associate
On December 22, 2014, the United States Court of Appeals for the Fourth Circuit struck down a portion of the North Carolina Woman’s Right to Know Act, creating a circuit split among the Fourth, Fifth, and Eighth Circuits.[1]
The North Carolina Woman’s Right to Know Act, which was passed in 2011, sets forth certain requirements that a woman must meet before she can obtain an abortion in North Carolina.[2] The stricken portion, the Display of Real-Time View Requirement, required an abortion provider to perform an ultrasound on a woman seeking an abortion, to display the resulting sonogram so that the woman may view it in real time, to simultaneously describe certain aspects of the sonogram’s contents to her, and to offer her the opportunity to hear the fetal heartbeat.[3] This process, often referred to as the “display-and-describe” requirement, was considered fulfilled even if the woman chose to look away from the sonogram or not listen to the description of it, and it could be dispensed with altogether in the event of a medical emergency.[4]
Generally, to determine whether a state restriction on abortion violates the Due Process Clause of the Fourteenth Amendment, courts employ the undue burden standard set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey.[5] Under this standard, the restriction is deemed unconstitutional if its “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”[6] In declaring the display-and-describe requirement unconstitutional, however, the Fourth Circuit declined to apply the undue burden standard, holding instead that the requirement violated a doctor’s First Amendment right to freedom of speech.[7]
Contrary to the Fourth Circuit, the Fifth and Eighth Circuits upheld the constitutionality of similar requirements.[8] In 2008, the Eighth Circuit rejected a compelled-speech challenge to a South Dakota law requiring a doctor to make several statements to a woman seeking an abortion, including the statement that abortion “will terminate the life of a whole, separate, unique, living human being,” and that financial assistance may be available to the woman if she chooses childbirth.[9] Finding that these statements relayed “truthful, non-misleading information relevant to a patient’s decision to have an abortion,” the Eighth Circuit held that the statements were not ideological in nature and therefore did not constitute compelled speech, despite the fact that this “information might also encourage the patient to choose childbirth over abortion.”[10]
In 2012, the Fifth Circuit echoed the Eighth Circuit’s analysis when it dismissed a compelled-speech challenge of Texas’s display-and-describe requirement, which is nearly identical to the requirement struck down by the Fourth Circuit.[11] The Fifth Circuit held that a sonogram and an accompanying description of it are “medically accurate depictions [that] are inherently truthful and non-misleading” and, as such, do not carry an ideological message.[12] Additionally, the Fifth Circuit rejected the argument that display-and-describe requirements are medically unnecessary, holding that “information about fetal development is ‘relevant’ to a woman’s decision-making.”[13]
In their respective decisions, the Fifth and Eighth Circuits both referred to a single paragraph of Casey,[14] which states:
To be sure, the physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.[15]
Specifically, the Fifth Circuit construed this paragraph to mean that the strict scrutiny analysis typically applied in compelled speech cases is inapplicable in the context of abortion regulations.[16]
The Fourth Circuit contends that the Fifth and Eighth Circuits “read too much into” this paragraph, stating that Casey “does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here.”[17] In fact, “the plurality [in Casey] did not hold sweepingly that all regulation of speech in the medical context merely receives rational basis review.”[18] Instead, the Fourth Circuit held intermediate scrutiny to be the appropriate standard regarding compelled speech in the context of abortion regulations.[19] The Fourth Circuit also disagreed with the Fifth and Eighth Circuits’ notion that the dissemination of facts cannot be compelled speech, arguing that “[t]hough the information conveyed may be strictly factual, the context surrounding the delivery of it promotes the viewpoint the state wishes to encourage.”[20] In support of this argument, the Fourth Circuit cited to Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,[21] in which the United States Supreme Court stated that protection from compelled speech “applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.”[22]
In general, the First Amendment protects both an individual’s “right to speak freely and the right to refrain from speaking at all.”[23] It also restricts the state from compelling individuals to disseminate its ideological message.[24] The Fourth Circuit deemed the act of displaying the sonogram to be expressive conduct—which is entitled to First Amendment protection—because the “clear import of displaying the sonogram . . . is to use the visual imagery of the fetus to dissuade the patient from continuing with the planned procedure.”[25] The Fourth Circuit argued that by requiring a doctor to display a sonogram and explain it to the patient, North Carolina was forcing the doctor to express the state’s pro-life message to the patient.[26] The Fourth Circuit ultimately analyzed the display-and-describe requirement unconstitutional under an intermediate scrutiny standard, holding that although states have a substantial interest in protecting fetal life, the requirement ultimately “interferes with the physician’s right to free speech beyond the extent permitted for reasonable regulation of the medical profession.”[27]
Additionally, the Fourth Circuit stated that the display-and-describe requirement deviated from informed consent laws, which typically require the doctor to describe the nature of the procedure—as well as its risks and alternatives—to the patient.[28] According to the Fourth Circuit, in the event that the woman opted to look away from the sonogram or cover her ears during the doctor’s description of it, as the law entitled her to do, the law accomplished almost nothing in terms of communicating information that would aid the patient in making an informed choice.[29] Moreover, the Fourth Circuit argued that while informed consent typically requires a doctor to refrain from “imposing his or her own personal will and values on the patient,” the display-and-describe requirement essentially forced the doctor to “express a preference for childbirth over abortion” to the patient.[30]
The Fourth Circuit also distinguished the display-and-describe requirement from an abortion requirement that was upheld against a compelled-speech attack in Casey, which required the doctor to inform the patient that materials from the state describing the fetus were available to her and to give her the material if she asked for it.[31] According to the Fourth Circuit, the important distinction between these two requirements was that the display-and-describe requirement forced the doctor to use his or her own voice, which created the potential to confuse the patient as to whether the message was coming from the doctor or the state.[32] However, the law in Casey imposed no such risk, because the materials were clearly issued from the state.[33]
Following the Fourth Circuit’s decision, the attorney general of North Carolina quickly announced the state’s plan to appeal to the United States Supreme Court.[34] If the Supreme Court chooses to hear the case, its ruling will impact the display-and-describe requirements of Texas and other states, including Louisiana.[35] Louisiana’s display-and-describe requirement is nearly identical to the requirement struck down by the Fourth Circuit, except that in Louisiana, if the fetal heartbeat is present, the doctor must make it audible to the woman, instead of merely offering her the opportunity to hear it.[36] This requirement is considered fulfilled if she chooses not to listen to the heartbeat.[37]
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[1] Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014).
[2] N.C. Gen. Stat. §§ 90-21.80 –21.92 (2011).
[3] Id. § 90-21.85(a), invalidated by Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014).
[4] Id. § 90-21.85(a)–(b), invalidated by Stuart, 774 F.3d 238.
[5] See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 837 (1992).
[6] Id.
[7] Stuart, 744 F.3d at 242. See also U.S. Const. amend. I.
[8] Stuart, 774 F.3d at 248–49.
[9] Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 726–27 (8th Cir. 2008).
[10] Id. at 735–36.
[11] Tex. Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570, 574–80 (5th Cir. 2012).
[12] Id. at 576–77.
[13] Id. at 578.
[14] Stuart v. Camnitz, 774 F.3d 238, 248 (4th Cir. 2014).
[15] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) (citations omitted).
[16] Lakey, 667 F.3d at 575–76.
[17] Stuart, 774 F.3d at 249.
[18] Id.
[19] Id.
[20] Id. at 253.
[21] Id. at 246.
[22] Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 573 (1995).
[23] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 645 (1943) (Murphy, J., concurring).
[24] Wooley v. Maynard, 430 U.S. 705, 713 (1977).
[25] Stuart, 774 F.3d at 245.
[26] See id. at 246.
[27] Id. at 250.
[28] Id. at 244, 251–55.
[29] Id. at 252.
[30] Id. at 252–53.
[31] Id. at 252.
[32] Id. at 253.
[33] Id.
[34] Lyle Denniston, Ultrasound Issue Headed to the Court, SCOTUSblog, (Dec. 29, 2014 1:41 PM) http://www.scotusblog.com/2014/12/ultrasound-issue-headed-to-the-court/, archived at http://perma.cc/6L9N-LRCX.
[35] See La. Rev. Stat. Ann. § 40:1299.35.2(D) (2008).
[36] See id. See also N.C. Gen. Stat. §§ 90-21.85 (2011).
[37] La. Rev. Stat. Ann. § 40:1299.35.2(D)(2)(a) (2008).