Fourth Circuit Rules NC Ultrasound Requirement Unconstitutional

Transvaginal untrasound device
Federal Court says law "is ideological in intent and in kind."

Update: June 15, 2015: SCOTUS refuses to review the case, leaving the Forth Circuit ruling in place.

Update: April 19, 2015 - North Carolina has petitioned the U.S. Supreme Court to review this lower court ruling.

A three-judge panel of the Fourth Circuit Court of Appeals in Virgina has ruled unanimously that North Carolina's narrated ultrasound requirement prior to having an abortion (§ 90-21.85) is a violation of the doctor's free speech rights.

Transforming the physician into the mouthpiece of the state undermines the trust that is necessary for facilitating healthy doctor-patient relationships and, through them, successful treatment outcomes.
 - Judge J. Harvie Wilkinson III

The provision was part of the "North Carolina Women's Right to Know Act" (House Bill 854 / S.L. 2011-405), which passed in 2011. However, the ultrasound requirement never went into effect pending a legal challenge. According to Reuters, a "spokeswoman for the state's attorney general said North Carolina will appeal the ruling to the U.S. Supreme Court, noting that another federal appeals court earlier upheld a similar ultrasound requirement in Texas."

For information about the impact of these "informed consent" laws, listen to Carolyn Jones tell her story about an experience with the similar law in Texas. For an example of how Christian conservatives try to mislead people by creating controversy (a new requirement becomes something that deprived women are suddenly "allowed"), see this reaction to today's ruling.

As Dahlia Lithwick notes: "Perhaps the most striking part of this opinion" [written by a Reagan-appointee "who was shortlisted for John Roberts’ seat as Chief Justice of the Supreme Court"] is when the court "starkly contrasts the standard informed-consent conversation between a physician and her patient with the statute enacted in North Carolina:"

Informed 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.” … We can perceive no benefit to state interests from walling off patients and physicians in a manner antithetical to the very communication that lies at the heart of the informed consent process.

Here's the full text of the NC provision that was affirmed by the Forth Circuit to be unconstitutional.:

§ 90-21.85.  Display of real-time view requirement.

(a) Notwithstanding G.S. 14-45.1, except in the case of a medical emergency, in order for the woman to make an informed decision, at least four hours before a woman having any part of an abortion performed or induced, and before the administration of any anesthesia or medication in preparation for the abortion on the woman, the physician who is to perform the abortion, or qualified technician working in conjunction with the physician, shall do each of the following:

(1) Perform an obstetric real-time view of the unborn child on the pregnant woman.

(2) Provide a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus and the number of unborn children depicted. The individual performing the display shall offer the pregnant woman the opportunity to hear the fetal heart tone. The image and auscultation of fetal heart tone shall be of a quality consistent with the standard medical practice in the community. If the image indicates that fetal demise has occurred, a woman shall be informed of that fact.

(3) Display the images so that the pregnant woman may view them.

(4) Provide a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.

(5) Obtain a written certification from the woman, before the abortion, that the requirements of this section have been complied with, which shall indicate whether or not she availed herself of the opportunity to view the image.

(6) Retain a copy of the written certification prescribed by subdivision (a)(5) of this section. The certification shall be placed in the medical file of the woman and shall be kept by the abortion provider for a period of not less than seven years. If the woman is a minor, then the certification shall be placed in the medical file of the minor and kept for at least seven years or for five years after the minor reaches the age of majority, whichever is greater.

If the woman has had an obstetric display of a real-time image of the unborn child within 72 hours before the abortion is to be performed, the certification of the physician or qualified technician who performed the procedure in compliance with this subsection shall be included in the patient's records and the requirements under this subsection shall be deemed to have been met.

(b) Nothing in this section shall be construed to prevent a pregnant woman from averting her eyes from the displayed images or from refusing to hear the simultaneous explanation and medical description.

(c) In the event the person upon whom the abortion is to be performed is an unemancipated minor, as defined in G.S. 90-21.6(1), the information described in subdivisions (a)(2) and (a)(4) of this section shall be furnished and offered respectively to a person required to give parental consent under G.S. 90-21.7(a) and the unemancipated minor. The person required to give consent in accordance with G.S. 90-21.7(a), as appropriate, shall make the certification required by subdivision (a)(5) of this section. In the event the person upon whom the abortion is to be performed has been adjudicated mentally incompetent by a court of competent jurisdiction, the information shall be furnished and offered respectively to her spouse or a legal guardian if she is married or, if she is not married, to one parent or a legal guardian and the woman. The spouse, legal guardian, or parent, as appropriate, shall make the certification required by subdivision (a)(5) of this section. In the case of an abortion performed pursuant to a court order under G.S. 90-21.8(e) and (f), the information described in subdivisions (a)(2) and (a)(4) of this section shall be provided to the minor, and the certification required by subdivision (a)(5) of this section shall be made by the minor.  (2011-405, s. 1.)

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William Keener's picture

June 15, 2015: SCOTUS refuses to review the case, leaving the Forth Circuit ruling in place.