The 4th U.S. Circuit Court of Appeals will hear oral arguments on Wednesday over a North Carolina law that would require health care workers to show pregnant women ultrasound images and describe them in detail just hours before providing abortions.
U.S. District Judge Catherine Eagles ruled in January that the provision of the 2011 “Women’s Right To Know Act” requiring abortion providers in North Carolina to have such discussions with patients was overly broad and a violation of free speech.
Eagles described the law as a “one-size-fits-all provision” that was an “impermissible attempt to compel these providers to deliver the state’s message in favor of childbirth and against abortion.”
In an appeal filed in May with the 4th Circuit Court of Appeals, lawyers from the office of N.C. Attorney General Roy Cooper argued that Eagles got it wrong.
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“Governments frequently compel speech as part of their authority to regulate professions,” John F. Maddrey, solicitor general, argued in the appeal. “Public officials must recite an oath of office. Doctors must report gunshot wounds and suspected child abuse to the authorities. Doctors and pharmacists must provide mandatory disclosures when dispensing prescription medication, including information describing possible adverse side effects and potential serious health consequences that may result from taking the medications.”
Maddrey also contends in the brief that the information to be disclosed is not “ideological.”
The solicitor general, representing the N.C. legislators on appeal, encourages the 4th circuit judges who will hear the arguments to look toward Texas as they weigh the legal arguments.
In Texas, a U.S. district court judge found a similar ultrasound law unconstitutional only to be reversed in 2012 by the 5th U.S. Circuit Court of Appeals, considered by legal analysts to be one of the most politically conservative in the country.
The U.S. Supreme Court declined to take up the Texas case, which meant the lower court ruling stood.
In November 2013, the justices again refused to hear an appeal of a lower court’s ruling – of Oklahoma’s similar ultrasound law – but this time it had a different outcome. It let the the Oklahoma Supreme Court’s nullification of the state’s law stand.
The decisions by the U.S. Supreme Court not to take up the cases has not left a clear roadmap for lower courts.
A 4th Circuit ruling either way could open the door for the country’s highest court to take up the topic.
Lawyers from the American Civil Liberties Union and other organizations who challenged the 2011 N.C. law as a First Amendment violation plan to voice their concerns again in Richmond.
Critics of the measure have described legislative attempts in 2011 to restrict abortion access as a “war on women.”
“These unconstitutional measures would have prevented doctors from using their best medical judgment to provide patients with care based on their specific individual needs,” said Jennifer Rudinger, executive director of the ACLU of North Carolina. “Politicians have no business intruding into individuals’ private medical decisions.”