Federal judge expects to rule in NC's abortion ultrasound case in weeks

ablythe@newsobserver.comAugust 24, 2013 

— U.S. District Judge Catherine Eagles could have an answer for North Carolinians in several weeks about whether she will strike down or uphold key provisions of a 2011 law requiring doctors to display and explain ultrasound images to women seeking abortions hours before performing the procedure.

The law, which was immediately challenged in federal court by civil rights advocates and women’s health care providers questioning its constitutionality, is part of a broad push by Republican lawmakers to diminish abortions across the country. Many of its key provisions have been blocked from taking effect by a temporary injunction imposed by Eagles in October 2011.

The debate over the law in a Greensboro federal courtroom Friday lacked the traditional, emotionally wrought opinions in the abortion debate that divide pro-choice and pro-life advocates. The points made by attorneys on both sides were grounded in the sweep or limits of free speech principles.

The six organizations behind the federal lawsuit – the ACLU of North Carolina Legal Foundation, the Center for Reproductive Rights, Planned Parenthood of Central North Carolina, Planned Parenthood Health Systems, Planned Parenthood Federation of America and the American Civil Liberties Union – argued that requiring physicians to explain in detail the ultrasound images stifled their constitutional rights.

Though the law dictates that abortion providers have blinders and ear plugs available for women who do not want to hear descriptions of the ultrasound images or see the screen that abortion providers are required to put in their view, there is no option for doctors to forgo the discussions.

“The doctor has to speak regardless of what the patient wants,” Julie Rikelman, the litigation director of the Center for Productive Rights U.S. Legal Program, argued Friday.

Eagles asked Faison Hicks, the special deputy attorney general representing North Carolina lawmakers, if the woman “can cover her eyes, cover her ears, how can it be relevant” speech?

The North Carolina law was written in anticipation of other court rulings that have struck down provisions requiring a woman to see ultrasound images and listen to detailed descriptions. Hicks contended such exemptions did not make the details irrelevant.

“But we’re not going to cram it down her throat,” he said.

Eagles also asked the state’s attorney what kinds of sweeping implications such a law might have on the practice of medicine and legislative intervention.

“Not everything is about abortion,” Eagles said. “Obviously the state can regulate medicine to some degree. I’m just trying to understand what has to exist before the legislature has to get into providing care for a patient.”

Hicks said he had not anticipated such a broad question, but contended that the health care industry was one of the most heavily regulated trades in the country. He argued that because various governments funnel many public dollars to health care providers, “my bet is if you ask government how far this can go, well, pretty far.”

Rep. Paul Stam, a Republican from Apex and a key proponent of the law, was at the hearing in Greensboro. Stam has touted provisions of the law that went unchallenged, including the 24-hour waiting period in which providers are to make information available about any risks associated with abortions and alternatives to the procedures.

Advocates of ultrasound laws in Texas, Oklahoma and just recently Wisconsin argue ultrasounds will help the woman bond with the fetus and convince her to save it.

Critics have attacked the laws on different constitutional grounds, arguing, in some cases, that such measures violate a woman’s due-process rights.

In North Carolina, the debate has focused on free speech.

After the hearing Friday, Stam said he did not think the challenged provisions infringed on the First Amendment. He contended that some of the medical malpractice laws were similar, because they instruct physicians about risks they need to warn patients about to protect themselves from legal liability.

Rikelman, representing the ultrasound law challengers, disagreed.

“This is completely different,” Rikelman said after the hearing. “This is the government requiring doctors to shame their patients and really demean themselves.”

Forty years after the U.S. Supreme Court’s decision in Roe v. Wade, legalizing abortion, critics of the procedure have turned their attention to the state level to enact new restrictions.

Gov. Pat McCrory, a Republican, signed legislation this month that critics contend is designed to limit access to abortions. The law requires abortion providers to meet licensing standards that the vast majority of the state’s providers don’t currently meet. Advocates argue the rules are intended to enhance safety measures.

The U.S. Supreme Court has yet to rule on an ultrasound law, but the justices have been asked to take up a case from Oklahoma, where a law has been blocked by legal challenges.

A Texas law, struck down by the trial courts, has been upheld by a circuit appeals court.

Advocates and critics of such measures await Eagles’ ruling to see where North Carolina will fit into the legal landscape.

Blythe: 919-836-4948

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