The Supreme Court on Monday refused to hear an appeal from North Carolina officials seeking to revive a state law that had required doctors to perform ultrasounds, display the resulting sonograms and describe the fetuses to women seeking abortions.
The Supreme Court’s one-sentence order, as is the custom, gave no reasons. Justice Antonin Scalia noted a dissent, also without saying why.The order left in place an appeals court ruling that had held the law unconstitutional as a violation of the First Amendment.“The state cannot commandeer the doctor-patient relationship to compel a physician to express its preference to the patient,” Judge J. Harvie Wilkinson III wrote in December for a unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va.Other federal appeals courts upheld similar laws from Texas and South Dakota. Such disagreements among appeals courts often lead to Supreme Court review.,,,Monday’s development, which set no precedent, did not affect the validity of any law aside from North Carolina’s.
The important take away from the refusal of SCOTUS can be found in the ruling of the 4th Circuit Court of Appeal. Dahlia Lithwick writing for Slate highlights:
Perhaps the most striking part of the opinion comes at the very end, where the court starkly contrasts the standard informed-consent conversation between a physician and her patient with the statute enacted in North Carolina:
AddressingInformed consent frequently consists of a fully-clothed conversation between the patient and physician, often in the physician’s office. It is driven by the “patient’s particular needs and circumstances” … so that the patient receives the information he or she wants in a setting that promotes an informed and thoughtful choice. This provision, however, finds the patient half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina. … Informed consent has not generally been thought to require a patient to view images from his or her own body much less in a setting in which personal judgment may be altered or impaired. Yet this provision requires that she do so or “avert her eyes.” Rather than engaging in a conversation calculated to inform, the physician must continue talking regardless of whether the patient is listening. … The information is provided irrespective of the needs or wants of the patient, in direct contravention of medical ethics and the principle of patient autonomy. Forcing this experience on a patient over her objections in this manner interferes with the decision of a patient not to receive information that could make an indescribably difficult decision even more traumatic and could “actually cause harm to the patient.” … And it is intended to convey not the risks and benefits of the medical procedure to the patient’s own health, but rather the full weight of the state’s moral condemnation.
So, yes this is a big deal as currently there are 10 states with mandatory ultrasound laws and as Liptak notes, "The Supreme Court is expected to act soon in cases concerning more sweeping challenges to abortion regulations in cases from Mississippi and Texas."Wilkinson noted that, “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 that 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.” He added that, “this Display of Real-Time View Requirement explicitly promotes a pro-life message by demanding the provision of facts that all fall on one side of the abortion debate—and does so shortly before the time of decision when the intended recipient is most vulnerable.”
The panel then turned to the state’s claim that the ultrasound script is merely a regulation of the practice of medicine that need only satisfy the lowest level of judicial review, and the panel rejected the view that doctors have extremely limited speech protections: “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.”
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