A unanimous panel of Fourth Circuit judges today struck down a North Carolina law that forces women seeking an abortion to undergo a sonogram, and then see and hear a detailed description of the fetus – a process that is clearly designed to try and make them choose not to have an abortion. The court bases its decision not on women's right to make their own reproductive choices, but on doctors' First Amendment right not to deliver an anti-choice message that may not be helpful to their patients.
The court focuses on how the law's requirements "impose an extraordinary burden on expressive rights" of the doctors.
While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here.
Noting that two other circuits have upheld similar laws, the court writes:
With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in 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.
The North Carolina law struck down by this decision did not have an exception for rape or fetal abnormalities. The court writes:
Particularly for women who have been victims of sexual assaults or whose fetuses are nonviable or have severe, life-threatening developmental abnormalities, having to watch a sonogram and listen to a description of the fetus could prove psychologically devastating. Requiring the physician to provide the information regardless of the psychological or emotional well-being of the patient can hardly be considered closely drawn to those state interests the provision is supposed to promote. [internal citations removed]
The repudiation of North Carolina's law was written by Reagan nominee J. Harvie Wilkinson and joined in full by Wliiam Byrd Traxler (a Clinton judge) and Allyson Kay Duncan (a Bush-43 judge). But since today's ruling creates a circuit split, the final decision on laws like this one is likely to be made by the Supreme Court.