After reviewing a provision of a North Carolina law that requires physicians or other healthcare providers to make an ultrasound image visible to a woman seeking an abortion and to describe to the patient the images seen on an ultrasound, a district court concluded that the provision likely violates the First Amendment and issued a preliminary injunction against the provision. The court, however, allowed other provisions of the law to go into effect as scheduled. Stuart v. Huff, No. 1:11CV804, 2011 WL 5042110 (M.D.N.C. Oct. 25, 2011). Judge Catherine C. Eagles, an Obama nominee, wrote the opinion.
Earlier this year, the North Carolina General Assembly passed the “Woman’s Right to Know Act” (the “Act”), which was set to become effective on October 26, 2011. N.C. Sess. Laws 405. The Act has two main provisions. The first provision requires physicians or other healthcare professionals to provide a woman with certain information at least 24 hours in advance of an abortion procedure. The second provision – referred to by the court as the “speech-and-display” requirements – requires physicians or other healthcare professionals to perform an ultrasound at least four hours in advance of the procedure, make the ultrasound image visible to the patient, and describe to the patient the images seen on the ultrasound, including “the presence, location, and dimensions of the unborn child within the uterus,” and “the presence of external members and internal organs, if present and viewable.”
Shortly after the Act passed, several North Carolina physicians and healthcare providers filed a lawsuit against North Carolina, challenging the constitutionality of several parts of the law. Although the Plaintiffs argued that the Act is unconstitutional for a number of reasons, in their motion for a preliminary injunction, they advanced only three of their constitutional challenges: a First Amendment challenge, a void-for-vagueness challenge, and a substantive due process challenge.
The court began its preliminary injunction analysis by addressing the Plaintiffs’ First Amendment challenge. The court first noted that the “speech-and-display” requirements compel content-based speech, since they require physicians or healthcare providers to orally and visually convey specified material about the fetus. In an attempt to avoid strict scrutiny analysis – which applies when the government compels content-based speech – the Defendants argued that the undue burden standard of Casey should apply. See Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 884 (1992) (plurality opinion). The court swiftly rejected this argument, reasoning that the undue burden analysis only applies when a woman’s liberty interest is at stake, not where a healthcare provider’s First Amendment rights are at stake.
Next, the court rejected the Defendants’ other attempt to avoid strict scrutiny analysis, which was based on the Defendants’ contention that the speech is “professional” or “commercial.” The court stated that even if the speech has some professional or commercial qualities, those qualities are “intertwined with non-commercial speech and thus [the speech as a whole is] entitled to the full protection of the First Amendment.” See Tex. Med. Providers Performing Abortion Servs. v. Lakey, No. A-11-CA-486-SS, 2011 WL 3818879, at *24 (W.D. Tex. Aug. 30, 2011).
The court went on to note that while it is possible that the Supreme Court might apply intermediate scrutiny to compelled speech in the ordinary informed-consent context, the “speech-and-display” requirements go “well beyond” what is traditionally required for inform consent, and also go “well beyond” the provisions that the Supreme Court in Casey approved. See Casey, 505 U.S. at 884 (plurality opinion).
After concluding that strict scrutiny analysis applies to the “speech-and-display” requirements, the court turned to the question of whether the interests asserted by the Defendants are compelling and whether the requirements are narrowly tailored to achieve those interests.
The Defendants asserted, and the court rejected, several state interests for the “speech-and-display” requirements. First, the Defendants asserted that the state has an interest in protecting the psychological health of patients. The court responded by stating that even if this were a compelling state interest, the Defendants failed to produce any evidence that the “speech-and-display” requirements furthers it. In fact, the court went on, the Plaintiffs produced evidence suggesting that the requirements harm patients’ psychological health. Second, the Defendants asserted that the state has an interest in preventing coercive abortions. As with the first asserted interest, the Court responded by stating that even if this were a compelling state interest, the Defendants failed to explain how the “speech-and-display” requirements further this interest. Finally, the Defendants asserted that the state has an interest in expressing its preference for the life of the unborn. The court responded by stating that even if this were a compelling state interest, the Defendants failed to produce evidence that other alternatives – such as making the information available in written form, or offering to make the image and information available upon request – could not achieve this interest in a less-burdensome manner.
Because the Defendants failed to show that the “speech-and-display” requirements narrowly advanced a compelling state interest, the court concluded that the Plaintiffs were likely to succeed on their First Amendment claims. The court went on to hold that the Plaintiffs established that they would be irreparably harmed absent an injunction and that the balance of public equities tips in their favor. Therefore, the court enjoined the “speech-and-display” requirements in their entirety. The court noted, however, that because the Act contains a severability clause and the Plaintiffs did not challenge the Act in its entirety, other portions of the Act – such as the provision that requires physicians or other healthcare professionals to provide women with certain information at least 24 hours in advance of an abortion procedure – would go into effect on October 26th as scheduled.
Scott Herrig, University of California, Berkeley-School of Law 2012