By Dave Andrusko
On December 22, we wrote about the unanimous decision of a three-judge panel of the 4th Circuit Court of Appeals to uphold a lower court judge’s decision striking down The “Right to View” provision of North Carolina’s 2011 “Woman’s Right to Know” law.
Writing for the panel, Judge J. Harvey Wilkinson III concluded that requiring “physicians to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions” violates the First Amendment speech rights of abortionists. The usual suspects hailed the outcome, pro-lifers vigorously disagreed.
Significantly, as Ed Whelan pointed out, Judge Wilkinson ignored contrary conclusions from the Fifth Circuit and the Eighth Circuit. We are far from hearing the last word on ultrasound legislation.
A recent editorial in the Los Angeles Times hailing the decision is worth considering for a few minutes.
You could say you get a sense of the drift of the editorial by its title: “Doctors shouldn’t be compelled to give anti-abortion lectures to patients.”
Note how at the very beginning Judge Wilkinson gives ever so slightly with the right hand what he vigorously snatches back with his left. He wrote
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. We thus affirm the district court’s holding that this compelled speech provision violates the First Amendment.
Without getting too deep into the jurisprudential weeds, a key initial threshold question is if the regulations must receive “strict scrutiny because it is content-based and ideological,” as Wilkinson writes, or as the state of North Carolina argued, be “treated as a regulation of the medical profession in the context of abortion and thus subject only to rational basis review.”
Judge Wilkinson said the panel agreed with U.S. District Judge Catherine Eagles that the regulations must at least meet the in-between standard—“intermediate scrutiny”–to survive. He concluded they did not.
“The Requirement is quintessential compelled speech. It forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion. …This compelled speech, even though it is a regulation of the medical profession, is ideological in intent and in kind.
For its part, the Los Angeles Times editorial board maintains (using the same give and then take back technique)
There’s nothing wrong with providing pertinent information about risks and benefits of a medical procedure so that a patient can make an informed choice. In this editorial [previously written by the Times] about immunization, for instance, there is discussion of a law in California that requires doctors to give information to parents about the importance of vaccinating their children; that law appears to have had positive effects.
But the provision of the law under scrutiny in North Carolina goes beyond science, requiring a doctor to show his patient the sonogram and describe the fetus in detail — even if she averts her eyes and refuses to listen. The purpose is not to inform the patient about objective, scientific facts, but merely to persuade her not to have an abortion.
Really? It cannot be both? Or, put another way, it cannot be that by presenting objective facts about the unborn child’s development and by offering her the opportunity to see her baby, it will open her heart and mind to the possibility that taking that child’s life is not the right course?
In late October, when we wrote about the oral arguments presented to the appeals panel, it was difficult to be optimistic. The litigants used the kind of inflammatory language geared to circumvent the brain—for example, that the regulations “hijacked a provider’s [the abortionist’s] voice,” as the attorney for the Center for Reproductive Rights insisted.
This is probably why Judge Wilkinson made a passing nod in the direction of the state’s interest in “protecting the sanctity of life in all its phases.” Referring to previous Supreme Court decisions, North Carolina Solicitor General John Maddrey had reminded the judges that the state has a legitimate interest in ensuring that a woman’s decision “is mature and informed”; in protecting her health; and in “the life of the embryo or fetus she is carrying.”
Which, of course, is what gets totally lost in the discussion—in this decision and in general. Besides the mother and the state of North Carolina, there is somebody else who has interests, the most vital interests of all: the unborn child.
Way back in October 2011, when Judge Eagles issued a preliminary injunction (less than 24 hours before the law was to go into effect), I asked Mary Spaulding Balch, J.D., director of state legislation for the National Right to Life Committee, about Judge Eagles’s “compelling speech” argument.
“There are numerous precedents which impact other aspects of people’s lives where laws require information be provided, and in many cases displayed and orally described,” Balch explained.
“For example, when a person flies on a commercial aircraft, FAA regulations require that the crew give passengers a thorough oral explanation/demonstration of safety features of the plane or show a video that does the same. Passengers are not merely told that there is safety information on a card in the pocket in front of them. Even something that may seem very straightforward, like how to operate a seatbelt, is described in detail. Also, situations that may be unpleasant or even upsetting to passengers are discussed, such as loss of cabin pressure, water landings, fire evacuations and so forth. This information is shared, not to upset passengers, but to alert them and to equip them with information that could save their lives.”
Likewise, displaying the ultrasound image and orally describing what the screen depicts “gives mothers another piece they need to make a more informed decision and reduce the chance that she will make a decision based on an incomplete understanding of the full dimensions of her decision, which might later produce terrible remorse,” Balch said. She added, “The first amendment doesn’t protect the abortionist’s right not to give relevant information to his/her patient just because he doesn’t want the patient to know.”
When the decision came down, we also asked Barbara Holt, executive director of North Carolina Right to Life, for her thoughts.
“We are disappointed by the decision of the Court striking down North Carolina’s Ultrasound law,” she said. “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.”
Holt 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.”
The silver lining is that the remainder of the law did take effect in 2011. Left intact are provisions for a booklet containing scientifically accurate information about risks, alternatives and information on the development of the unborn child, compiled by the Department of Health and Human Services, to be offered to the mother at least 24 hours prior to an abortion so that she might have the opportunity to read and understand the information.