Monday, December 22, 2014
Fourth Circuit holds North Carolina abortion ultrasound show-and-tell requirement unconstitutional compelled speech, creates circuit split over standard of review
A three-judge panel of the United States Court of Appeals has unanimously affirmed a district court decision holding unconstitutional one portion of North Carolina's informed consent for abortion requirements. The provision held unconstitutional by the panel required a doctor to perform a pre-abortion ultrasound, to display the images to the pregnant woman (unless she chose not to view), to explain what the display shows (including "the presence of external members and internal organs, if present and viewable"), to offer an opportunity to hear the fetal heart tone, and to obtain and keep a certification that these requirements were followed. The Fourth Circuit panel analyzed the provision as a compelled speech requirement and held that the provision failed intermediate scrutiny. Judge Wilkinson wrote the opinion for the court in Stuart v. Camnitz, in which Judge Traxler and Judge Duncan joined.
The Court's application of heightened scrutiny created a seemingly direct split with the Fifth Circuit on the standard of review for an ultrasound show-and-tell, as well as with the Eighth Circuit if the split is viewed at a slightly higher level of generality. For conflicting scholarly views on the constitutionality of laws like North Carolina's, compare Casey and a Woman's Right to Know: Ultrasounds, Informed Consent, and the First Amendment (by Scott W. Gaylord and Thomas Molony), with Compelled Disclosures (by Caroline Mala Corbin).