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Appeals Court Mulls N.C. Law Requiring Abortion Providers To Describe Ultrasound Images

October 30, 2014 — A federal appeals court panel on Wednesday considered the constitutionality of a 2011 North Carolina law (HB 854) that requires doctors to perform ultrasounds on women seeking abortions and describe the images to them, even if they avert their eyes or cover their ears, the Charlotte Observer reports (Ordoñez, Charlotte Observer, 10/29).

Background

The provision was struck down earlier this year by U.S. District Judge Catherine Eagles. Eagles said the law violates physicians' free-speech rights because the state does not have "the power to compel a health care provider to speak, in his or her own voice, the state's ideological message in favor of carrying a pregnancy to term" (Women's Health Policy Report, 2/10).

North Carolina Attorney General Roy Cooper (D) appealed the decision to the 4th U.S. Circuit Court of Appeals (Charlotte Observer, 10/29). Cooper said at the time that while he personally "oppose[s] laws like this that force the state into women's medical decisions, the state will appeal this ruling because legitimate constitutional questions remain that should be decided by a higher court" (Women's Health Policy Report, 2/10).

Wednesday's Arguments

On Wednesday, Judge Allyson Duncan questioned what was wrong with the state communicating its concerns when a woman seeks an abortion, while Judge Harvie Wilkinson called describing the ultrasound image to a "half-clothed or naked patient ... pretty coercive." The three-judge panel is not expected to rule soon, according to the Observer.

The plaintiffs -- including the Center for Reproductive Rights and national and state chapters of the American Civil Liberties Union and Planned Parenthood -- argued that the law violates physicians' First Amendment rights because it "hijacks a provider's voice" by forcing them to communicate the state's message about abortion.

"It's a perversion of the informed consent practice," CRR attorney Julie Rikelman told the judges.

Meanwhile, the state argued that the First Amendment grants no right to practice medicine and that the law is within the state's authority to regulate professions. North Carolina Solicitor General John Maddrey said that under U.S. Supreme Court precedent, the state has a legitimate interest in protecting both a woman and her embryo or fetus (Charlotte Observer, 10/29).