Federal Court Permanently Blocks North Carolina Ultrasound Law

According to the court, the 2011 law violates abortion providers' free speech rights.

According to the court, the 2011 law violates abortion providers' free speech rights. Ultrasound via Shutterstock

On Friday, a federal court struck down a North Carolina law mandating abortion providers perform a narrated ultrasound four hours before performing an abortion, even if the patient having the procedure objects.

The North Carolina law, passed by the General Assembly in 2011 over the veto of then-Gov. Bev Perdue, is considered one of the most extreme ultrasound laws in the country. The law requires that abortion providers perform an ultrasound and place the image in the patient’s line of sight. The provider must then describe the embryo or fetus in detail and offer the patient the opportunity to hear the “fetal heart tone,” even over the objections of the patient. The law contains a narrow exception that allows a patient to avert their eyes and “refuse to hear” the description, but the provider is still required to place the images in front of the patient and describe them in detail, even if a patient tries to avoid them. The law forces this procedure on all patients, even those terminating pregnancies due to rape, incest, fatal fetal anomaly, or the health of the patient.

Civil rights advocates successfully challenged the ultrasound law, and in October 2011 a federal court preliminarily blocked it from going into effect. Last week’s ruling makes that preliminary injunction permanent.

“If these unconstitutional measures had gone into effect, doctors would have been prevented from using their best medical judgment to provide patients with care based on their specific individual needs,” said Jennifer Rudinger, executive director of the ACLU of North Carolina, in a statement. “This law represented an egregious government intrusion into individuals’ private medical decisions, and we are very pleased that it will not go into effect.”

According to the court, the North Carolina law unconstitutionally violates doctors’ First Amendment free speech rights. The law “compels a health care provider to act as the state’s courier” and to “disseminate the state’s message discouraging abortion, in the provider’s own voice, in the middle of a medical procedure, and under circumstances where it would seem the message is the provider’s and not the state’s.” This is state-compelled speech, the court explained, and not allowed under the First Amendment. According to the court, the law serves “no legitimate purpose” and forces providers to “deliver the state’s message to women who take steps not to hear it and to women who will be harmed by receiving it.”

In a statement, Center for Reproductive Rights President and CEO Nancy Northup heralded the decision as a “robust affirmation of the First Amendment rights of physicians.” She applauded the court for “making clear that politicians cannot use physicians as mouthpieces for their political agenda and interfere with patients’ personal decision making.”

North Carolina is among a handful of states to have recently passed laws requiring a patient to undergo a mandatory ultrasound prior to terminating a pregnancy. “Over the last three years, we’ve seen a record number of bills introduced, passed, and signed into law that either cut off a woman from access to safe, legal abortion outright, or insert politics directly into doctors’ offices,” said Cecile Richards, president of the Planned Parenthood Federation of America and Planned Parenthood Action Fund, in a statement. The ruling, Richards said, “marks a major victory for North Carolina women and sends a message to lawmakers across the country: it is unconstitutional for politicians to interfere in a woman’s personal medical decisions.”

Lawyers for the State of North Carolina have the option to appeal the decision, which would send the matter to the Court of Appeals for the Fourth Circuit for consideration. So far, mandatory ultrasound laws have had mixed support from the federal courts. A similar law is in effect in Texas after Judge Edith Jones of the Fifth Circuit Court of Appeals overturned a lower court’s injunction blocking it. But in November 2013, the U.S. Supreme Court refused to review a similar law from Oklahoma, allowing a ruling from the Oklahoma Supreme Court blocking the measure as unconstitutional to stand.