Civil Rights — N.C. Abortion Law Violates First Amendment

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Stuart v. Camnitz (Lawyers Weekly No. 001-001-15, 37 pp.) (Wilkinson, J.) No. 14-1150, Dec. 22, 2014; USDC at Greensboro, N.C. (Eagles, J.) 4^th Cir.

Holding: The 4^th Circuit upholds a district court decision striking a North Carolina law requiring physicians to display a sonogram and communicate specific information about fetal development to women seeking abortions, as a violation of the First Amendment.

The North Carolina statute’s “Display of Real-Time View Requirement,” N.C. Gen. Stat. § 90-21.85(b), requires physicians to perform an ultrasound, display the sonogram and describe the fetus to women seeking abortions. A physician must display and describe the image during the ultrasound, even if the woman actively averts her eyes and refuses to hear. This compelled speech, even though it is a regulation of the medical profession, is ideological in intent and in kind. The means used by North Carolina extend well beyond those states have customarily employed to effectuate their undeniable interests in ensuring informed consent and in protecting the sanctity of life in all its phases. We affirm the district court holding that this compelled speech provision violated the First Amendment.

We agree with the district court that the Requirement is a content-based regulation of a medical professional’s speech which must satisfy at least intermediate scrutiny. The Requirement is quintessential compelled speech. It forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion. The state freely admits the purpose and anticipated effect of the Display of Real-Time View Requirement is to convince women seeking abortions to change their minds or reassess their decisions. The clear and conceded purpose of the Requirement is to support the state’s pro-life position. That the doctor may supplement the compelled speech with his own perspective does not cure the coercion – the government’s message still must be delivered (though not necessarily received).

We need not conclusively determine whether strict scrutiny ever applies in similar situations, because in this case the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied.

This statutory provision interferes 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. We must therefore find the Requirement unconstitutional. The state may not commandeer the doctor-patient relationship to compel a physician to express its preference to the patient.

Judgment affirmed.