The Supreme Court on Monday declined to review a lower court ruling striking down North Carolina’s requirement that doctors take an ultrasound and describe the image to a woman before performing an abortion.
The justices without comment declined to review a decision by a panel of the U.S. Court of Appeals for the 4th Circuit that the requirement violated the First Amendment rights of the doctor performing the procedure.
“The requirement is quintessential compelled speech. It forces physicians to say things they otherwise would not say,” Circuit Judge J. Harvie Wilkinson III wrote.
Abortion rights groups had urged the court to let the ruling stand, and celebrated the court’s action as a victory.
“Women are fully capable of making thoughtful decisions about their families, future and health without interference from politicians who presume to know better,” said Nancy Northup, president of the Center for Reproductive Rights. “All doctors must be free to give patients their best medical judgment, free from talking points dictated by lawmakers advancing an agenda.”
The Supreme Court has not decided a major abortion case since 2007. But a round of abortion restrictions passed by state legislatures across the country may be leaving the justices with little choice but to weigh in on the subject next term.
The justices for weeks have been considering at their private conferences whether to accept a case from Mississippi that would effectively close that state’s only abortion clinic.
And while abortion rights advocates generally try to keep cases out of a Supreme Court that has grown increasingly conservative on the issue, they say they will ask the court to review a recent appeals court decision upholding a far-reaching Texas law.
The advocates say that restrictions in Texas have caused a majority of 41 licensed facilities to close. If the law is fully implemented, only eight clinics will be operating on July 1, advocates said.
Taken together, new restrictions in the states — requiring admitting privileges for physicians at nearby hospitals, for instance, or imposing costly physical upgrades to clinics — put pressure on the justices to define exactly what constitutes an “undue burden” on a woman’s right to obtain an abortion.
That was the standard set in the 1992 decision in Planned Parenthood v. Casey. Only Justice Anthony M. Kennedy remains from among the three justices who came up with the standard in that case.
The North Carolina law was passed in 2011. It required physicians to perform an ultrasound, display the sonogram and describe the fetus to women seeking abortions. It said the doctor must display and describe the image while the woman is on the examination table, even if she averts her eyes or tries not to listen.
State Attorney General Roy Cooper (D) said in a brief to the court that other states have had similar laws upheld in appeals courts, and that the requirement is “perfectly consistent with the First Amendment, as a reasonable regulation of medical practice.”
But Judge Wilkinson, writing for a unanimous panel, disagreed. While North Carolina “may certainly express a preference for childbirth over abortion . . . the state cannot commandeer the doctor-patient relationship to compel a physician to express its preference to the patient.”
Moreover, he added, the law required physicians to follow a script even if the woman does not want the information.
“She must endure the embarrassing spectacle of averting her eyes and covering her ears while her physician — a person to whom she should be encouraged to listen — recites information to her,” the opinion said. “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.”
Justice Antonin Scalia was the only justice recorded as saying he would have accepted the case. The court’s action has no effect on the states that have similar laws.
Abortion opponents said the court should have accepted the case.
“We’re disappointed that the Supreme Court has decided not to review a decision that denies mothers this fully informed consent about human life in the womb and the methods abortionists use to end it,” said Steven H. Aden, senior counsel for the Alliance Defending Freedom.
The case was Walker-McGill v. Stuart.