In a case that will likely head to the Supreme Court, the Fourth Circuit Court of Appeals ( the Federal Appeals Court covering North Carolina) held that a North Carolina statute that requires physicians to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions is unconstitutional as it violates the First Amendment rights of doctors.. The law is called the Display of Real Time View Act. Under the law a physician must display and describe the fetal image during the ultrasound, even if the woman actively “avert[s] her eyes” and “refus[es] to hear.” The physician must also describe the fetus in detail, “includ[ing] the presence, location, and dimensions of the unborn child within the uterus and the number of unborn children depicted, as well as “the presence of external members and internal organs, if present and viewable,” The physician also must offer to allow the woman to hear the fetal heart tone. The only exception other than medical emergency is that the law allows the woman to “avert her eyes from the displayed images” and “refus[e] to hear the simultaneous explanation and medical description” by presumably covering her eyes and ears.
Similar laws were upheld by Federal Appeals Courts in the Fifth Circuit (Texas) and the Eighth Circuit ( Missouri). The court in this case Stuart v. Camnitz stated that those cases overly relied on a Supreme Court case called Planned Parenthood v. Casey in determining what level of scrutiny applied to the case. Normally, Content-based regulations of speech typically receive strict scrutiny – the highest level of review under law. Restrictions on speech receiving strict scrutiny have a high hurdle to pass, they must show a compelling State interest; that the restriction is aimed at that objective;and generally that there are no less restrictive means to achieve that objective. The state, however, maintained that the requirement was merely a regulation of the practice of medicine that need only satisfy rational basis review. That is, as long as the restriction had a rational basis for its passing and it promoted a State interest it had to be permitted. That is the lowest level applied and was the standard used in Casey..
In distinguishing this case from Casey the court noted that Casey only discussed the First Amendment in a single paragraph which it quoted in full:
All that is left of petitioners’ argument is an asserted First Amendment right of a physician not to
provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be
sure, the physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. We see no constitutional infirmity in
the requirement that the physician provide the information mandated by the State here.
The State, relying on that paragraph, also argued that the physician was only being required to provide truthful information to a patient and that to do so was part of what the State determined was the informed consent necessary to the proper practice of medicine. So it came down to whether the court viewed this as the regulation of medical practice or a restriction on speech. The court stated that it would adopt an intermediate level of scrutiny as the regulation did involve the practice of medicine but also restricted the speech of doctors by forcing them to make statements they may not want to make. Under an intermediate standard of scrutiny, the state bears
the burden of demonstrating “at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest.”
The court held that this statutory provision interfered 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. In so doing,the court stated, “it imposes a virtually unprecedented burden
on the right of professional speech that operates to the detriment of both speaker and listener”
The court focused on the most serious draconian part of the statute – the section that required the doctors to give the information even if the patient had blocked her eyes and ears, requiring the physician to display the images and provide an explanation and medical description to a woman who has through ear and eye covering rendered herself temporarily deaf and blind.:
This is starkly compelled speech that impedes on the physician’s First Amendment rights with no counterbalancing promotion of state interests. The woman does not receive the information, so it cannot inform her decision. In fact, “[t]he state’s own expert witness agrees that the delivery of the state’s message in these circumstances does not provide any information to the patient and does not aid voluntary and informed consent. And while having to choose between blindfolding and earmuffing herself or watching and listening to unwanted information may in some remote way influence a woman in favor of carrying the child to term, forced speech to unwilling or incapacitated listeners does not bear the constitutionally necessary connection to the protection of fetal life. 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. 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 of informed consent.
Can anyone imagine that scenario being proper in a medical facility of any kind? Why wouldn’t doctors have to do so for all patients who did not want to hear the advice being given? The court also stated however, that even with a willing patient, the law was Unconstitutional since it imposed specific speech on the doctors and that doctors would be required to give this speech and make this display even if they thought it was not in the best interests of the mental well-being of their patients. This forced-speech was not justified by the State’s alleged interests of promoting childbirth and good medical care. The court also recognized the long-held doctrine that the right of free speech includes the right not to be forced to speak.:
The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind. Regulations which compel ideological speech “pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular
ideas or information or manipulate the public debate through coercion rather than persuasion.”
The stage is now set for a Supreme Court review of the law particularly since there are Federal Appeals Courts in conflict. The issue will come down to whether SCOTUS believes this was a proper regulation of the medical profession or a coercive restriction of a doctor’s Free Speech rights. I’ll go out on a limb and say that this will be a 5-4 decision in favor of upholding the doctor’s Free Speech rights. But I wouldn;t bet too much money on it.