Supreme Court rejects North Carolina’s ultrasound ‘informed consent’ law


uterus-stateOver the dissent of Justice Antonin “Nito” Scalia, without writing an opinion, “the Supreme Court on Monday silently added an implied measure of protection for the private choice of a woman to seek an abortion, sparing her doctor and her a state-mandated use of vivid fetal images to try to dissuade her.” A gesture in favor of a woman’s abortion choice (Lyle Denniston, SCOTUSblog). “The order has the practical effect of leaving undisturbed a lower-court ruling striking down that law on the premise that it was “ideological in intent and in kind” and thus not a valid form of state regulation of medical practice.”

North Carolina will not be allowed to enact one of the most radical forced ultrasound laws in the country, thanks to the Supreme Court’s decision on Monday to avoid reviewing the law. Think Progress reports, Supreme Court Spikes North Carolina’s Forced Ultrasound Law:

The Court’s decision is a victory for reproductive rights proponents, who challenged North Carolina’s law on First Amendment grounds — pointing out that the measure essentially forced doctors to deliver an anti-abortion message on behalf of the state. The justices are allowing to stand a unanimous decision from the U.S. Court of Appeals for the Fourth Circuit that agreed the law violated doctors’ right to free speech.

The law in question would require abortion patients to listen to a detailed description of their ultrasound before being allowed to continue with their pregnancy termination. The legislation includes very specific language that abortion doctors must relay. For instance, they must tell their patients about the fact that “the father is liable to assist in the support of the child” and “the woman has other alternatives to abortion, including keeping the baby or placing the baby for adoption,” as well as information about her fetus’ “anatomical and physiological characteristics.”

Even if the patient attempted to avoid that information by closing her eyes and covering her ears, North Carolina’s law makes doctors legally obligated to continue speaking.

So-called “informed consent” measures, which require abortion patients to receive biased counseling materials intended to dissuade them from going through with an abortion, have become increasingly popular on the state level. A recent Guttmacher Institute review of these state policies found that they typically include information that’s both politically motivated and medically inaccurate.

But the plaintiffs argued that North Carolina’s law is particularly extreme because of the lengths that doctors must go to frame this information, and the lower courts agreed. According to the panel of judges on the Fourth Circuit who blocked the law last year, “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.”

Abortion rights groups are celebrating the Supreme Court’s move to let that decision stand.

“Doctors shouldn’t be forced to humiliate a woman and disregard their best medical judgment in order to provide an abortion,” Jennifer Dalven, the director of the ACLU’s Reproductive Freedom Project, said in a statement. “The purpose of this law was crystal clear: to shame a woman who has decided to have an abortion out of getting one.”

Medical experts are also praising Monday’s news. Mark DeFrancesco, the president of the American College of Obstetricians and Gynecologists (ACOG), said in a statement that forced ultrasound laws “run counter to best medical practices,” adding that North Carolina’s policy specifically “violates the principle of appropriate informed consent.”

This 4th Circuit case may have legal implications for Arizona’s anti-abortion laws which also require doctors to read from a legislatively mandated script that is “ideological in intent and in kind” and thus not a valid form of state regulation of medical practice,” and that violates doctors’ right to free speech.

UPDATE: Lyle Denniston reports that the two abortion cases from the 5th Circuit Court of Appeals, one striking down the state of Mississippi’s law that would leave the state without any abortion clinics, and the last week’s decision from a panel in Texas upholding that state’s law  attempting to shut down that state’s abortion clinics, may be on the court’s docket next term. Abortion case on fast track to the Court?

Expecting that one side or the other will quickly take the dispute on to the Supreme Court, lawyers for abortion doctors and clinics in Texas on Friday asked a federal appeals court to rule by next Friday on the next step in the case.  The challengers to new abortion restrictions are seeking to delay a ruling by the U.S. Court of Appeals for the Fifth Circuit that the lawyers said will lead to the closing of ten of the nineteen clinics now operating in the state.   They want that ruling put on hold during any appeal to the Supreme Court.

[Last] Tuesday, a three-judge panel of the Fifth Circuit Court upheld most of the new limits on abortion clinic operations, and that decision is now scheduled to go into effect July 1.  On Thursday, the appeals court asked the clinics’ lawyers to spell out in detail what would happen if their request for a postponement were turned down.

After detailing what they expect to happen in that event, the clinics’ letter cited the “time-sensitive nature” of their plea for a postponement, noted that whoever loses on that point is likely to then go to the Supreme Court, and asked the appeals court to rule by next Friday at the latest.  A ruling by then, the attorneys said, “would permit the Supreme Court to consider the losing party’s request for relief by July 1, or shortly thereafter.”

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At issue in the case are two key parts of a 2013 state law that require doctors performing abortions at clinics to have privileges to admit patients to nearby hospitals, and that require abortion clinics to have facilities equal to those that provide surgical services.

Meanwhile, the Supreme Court may act as early as Monday on a pending abortion case from Mississippi, involving an appeal by state officials in support of a law that the Fifth Circuit blocked because it would lead to the closing of the only remaining abortion clinic in that state.

UPDATE:  The Court did not take action on Currier v. Jackson Health, the Mississippi abortion case, in its order List on Monday.