Federal appeals court panel upholds lower court decision striking down North Carolina’s ultrasound law


By Dave Andrusko

Barbara Holt, President, North Carolina Right to Life

Barbara Holt, President, North Carolina Right to Life

A three-judge panel of the 4th Circuit Court of Appeals today unanimously upheld a lower court judge’s decision striking down The “Right to View” provision of North Carolina’s 2011 “Woman’s Right to Know” law.

That provision requires that an ultrasound image of the unborn child be displayed at least four hours prior to an abortion so that the mother might view it and that she be given the opportunity to hear the unborn child’s heartbeat.

Writing for the panel, Judge J. Harvey Wilkinson argued that this amounted to “compelled speech, even though it is a regulation of the medical profession,” and “is ideological in intent and in kind.”

Judge J. Harvey Wilkinson

Judge J. Harvey Wilkinson

Judge Wilkinson added in the 37-page decision, “Abortion may well be a special case because of the undeniable gravity of all that is involved, but it cannot be so special a case that all other professional rights and medical norms go out the window,” he wrote.

“We are disappointed by the decision of the Court striking down North Carolina’s Ultrasound law,” Barbara Holt, executive director of North Carolina Right to Life, told NRL News Today. “Turning the screen at an angle where the mother may view it if she wishes is very little to ask, considering that a human life hangs in the balance.”

She noted that “Ultrasound technology has made tremendous advancements and provides a window to the womb that allows mothers to see their unborn children in real time. It is absolutely vital that a woman, at this most crucial life-and-death juncture, be provided all the information possible about the abortion procedure and the development of her unborn child. Simply put, the abortion decision cannot be undone. Women deserve all the facts.”

Holt added, “We will continue to work and urge the legislature to pass legislation that seeks to protect mothers and their unborn children.”

The law, passed with bi-partisan support, was enacted in July 2011 over then-Governor Beverly Perdue’s veto. The “Right to View” provision was preliminarily enjoined by U.S. District Judge Catherine Eagles in October of 2011.

On January 17, 2014, Judge Eagles, an Obama appointee, issued a permanent injunction which the state appealed a month later.

NRL News Today reported on the oral arguments in front of the panel in October.

The coalition of opponents argued that the right to view provision amounted to “compelled speech” which “hijacks a provider’s [the abortionist’s] voice,” according to Julie Rikelman from the Center for Reproductive Rights.

Not so, said Solicitor General John Maddrey. The provision adds “relevant, truthful, real-time information” to North Carolina’s informed consent law,” he said, according to the Associated Press. He added, according to reporter Larry O’Dell, that the state has a legitimate interest in ensuring that a woman’s decision “is mature and informed.”

Maddrey went on to add that “The possibility that sharing physical characteristics of a fetus might make a woman reconsider does not make it unconstitutional,” Franco Ordoñez of McClatchy Newspapers reported. Maddrey “cited earlier U.S. Supreme Court decisions that found that the state has a legitimate interest to protect not only the health of a pregnant woman but also the life of the embryo or fetus she is carrying.”

Maddrey said, “There is an additional state interest at play,” the unborn child.