Federal judge blocks ultrasound provision of North Carolina abortion law

[JURIST] A judge for the US District Court for the Middle District of North Carolina [official website] on Tuesday issued a preliminary injunction [text, PDF], blocking part of the state's abortion law that required a physician to perform an ultrasound and describe the images to the patient. The judge ruled [opinion, PDF] that the plaintiffs were likely to prevail on their First Amendment [text] challenge to certain provisions of the "Woman's Right to Know Act" [HB 854 materials] which were set to become effective Wednesday. Specifically, the plaintiffs challenged the act's "speech and display requirements," which mandate that a physician perform an ultrasound at least four hours before an abortion and then display the images to the patient while providing an explanation of the display. The plaintiffs' challenge is based on the grounds that they compel "unwilling speakers to deliver the state's message discouraging abortion." They further argue that as a result of this alleged violation, the requirements warrant analysis under a strict scrutiny standard. The defendants contend that strict scrutiny is not the correct standard, but, even if it applies, the requirements should be upheld as they further three compelling state interests: "protecting the psychological health of the patient, preventing coercive abortions, and expressing its preference for the life of the unborn." Judge Catherine Eagles rejected the defendants' arguments regarding the application of a different standard:

It is undisputed that the Act compels content-based speech by providers; it requires providers to orally and visually convey specified material about the fetus to their patients. The message is compelled regardless of a patient's individual circumstances or condition and regardless of the provider's medical opinion. The message is required even when the provider does not want to deliver the message and even when the patients affirmatively do not wish to see it or hear it. It is further undisputed that this implicates the First Amendment rights of providers such as the Plaintiffs.
The judge also held that, even if compelling state interests exist, the defendants failed to produce evidence that "alternatives more in proportion to the resulting burdens placed on speech would not suffice." Because the provisions at issue are able to be severed, the rest of the act will take effect Wednesday, as originally scheduled.

The plaintiffs sought an injunction after the state's House and Senate voted to override Governor Beverly Purdue's veto [JURIST reports] of the legislation. Another bill related to abortion passed by the North Carolina Legislature has also recently been challenged on First Amendment grounds. Last month, the American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF) [advocacy website] filed a federal lawsuit [JURIST report] challenging a North Carolina state law authorizing the use of pro-life license plates as a violation of the First Amendment. In June, the North Carolina General Assembly [official website] passed a bill [HB 289 materials] authorizing the issuance of "Choose Life" license plates, but failed to authorize the use of license plates stating, "Trust Women. Respect Choice," or "Respect Choice," which would indicate advocacy of reproductive rights. The ACLU-NCLF alleges that allowing pro-life proponents to express their views through the use of license plates while denying the same right to pro-choice proponents is discriminatory and in violation of the First Amendment. Katherine Lewis Parker, the Legal Director of the ACLU-NCLF, indicated that the law is being challenged because of its inhibitions on freedom of speech [statement] and not because of the abortion position advocated by the license plates.

 

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