News Law and Policy

North Carolina Ultrasound Law Blocked, Deemed Unconstitutional

Jessica Mason Pieklo

The unanimous opinion held that the 2011 law infringes on providers' free speech rights.

A panel of federal appeals court judges on Monday permanently blocked a 2011 North Carolina law that forces pregnant patients to undergo a narrated ultrasound before having an abortion, even if the patient objects. The panel declared the law unconstitutional.

The North Carolina law passed by the general assembly in 2011 over the veto of then-Gov. Bev Perdue is considered one of the nation’s most extreme forced ultrasound laws—a frequently proposed policy among anti-choice legislators.

The law requires that abortion providers perform an ultrasound and place the image in the patient’s line of sight. Once the image is in the patient’s line of site, the provider must then describe the embryo or fetus in detail and offer the patient the opportunity to hear the “fetal heart tone,” even over the objections of the patient. The law contains a narrow exception that allows a patient to avert their eyes and “refuse to hear” the description, but the provider is still required to place the images in front of the patient and describe them in detail, even if a patient tries to avoid them.

The law forces this procedure on all patients, even those terminating pregnancies due to rape, incest, fatal fetal anomaly, or the health of the patient.

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Civil rights advocates successfully challenged the ultrasound law as a violation of providers’ free speech rights, and in October 2011 a federal court preliminarily blocked it from going into effect. In January, a federal court made that preliminary injunction permanent.

Monday’s decision from the Fourth Circuit affirms that January decision.

“We’re thrilled that the appellate court rejected this unconscionable attempt to intrude on the doctor-patient relationship,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement following the decision. “Exam rooms are no place for propaganda and doctors should never be forced to serve as mouthpieces for politicians who wish to shame and demean women.”

North Carolina’s law unconstitutionally compels doctors to become a “mouthpiece of the state,” which “undermines the trust that is necessary for facilitating healthy doctor-patient relationships and, through them, successful treatment outcomes,” according to the Fourth Circuit’s unanimous opinion.

This statutory provision interferes with the physician’s right to free speech beyond the extent permitted for reasonable regulation of the medical profession, while simultaneously threatening harm to the patient’s psychological health, interfering with the physician’s professional judgment, and compromising the doctor-patient relationship.

“Moreover, far from promoting the psychological health of women, this requirement risks the infliction of psychological harm on the woman who chooses not to receive this information,” said the court.

She must endure the embarrassing spectacle of averting her eyes and covering her ears while her physician–a person to whom she should be encouraged to listen–recites information to her. We can perceive no benefit to state interests from walling off patients and physicians in a manner antithetical to the very communication that lies at the heart of the informed consent process.

Monday’s decision is at odds with decisions from the Fifth Circuit Court of Appeals and the Eighth Circuit Court of Appeals on similar ultrasound and informed consent laws, and could send the issue to the Supreme Court for resolution.

So far the Roberts Court has stayed out of the mandatory ultrasound battle, refusing in 2013 to review a similar law from Oklahoma, and allowing to stand a ruling from the Oklahoma Supreme Court blocking the measure as unconstitutional.

The Fourth Circuit panel noted that while North Carolina is legally within its right to adopt a law that explicitly promotes an anti-choice message, such a measure must still have a grounded justification in advancing patient health.

“The information is provided irrespective of the needs or wants of the patient, in direct contravention of medical ethics and the principle of patient autonomy,” the court wrote. “And it is intended to convey not the risks and benefits of the medical procedure to the patient’s own health, but rather the full weight of the state’s moral condemnation.”

“This law is about trying to shame a woman out of having an abortion, pure and simple,” said Louise Melling, deputy legal director for the ACLU. “Politics don’t belong in the exam room, and a doctor shouldn’t have to humiliate a woman because some politicians disagree with her decision.”

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