By M.H. Cavanaugh
Christian Action League
June 19, 2015
WASHINGTON, D.C. – Monday, the United States Supreme Court decided not to review a North Carolina law that would have required abortion doctors to perform an ultrasound, then display and describe the images to women seeking to end their pregnancies.
The law which passed the North Carolina General Assembly (NCGA) as a part of the Woman’s Right to Know Act in 2011 was vetoed by then Governor Beverly Perdue. The NCGA overrode the Governor’s veto. Still, the provision would face a lawsuit on behalf of several physicians, the Center for Reproductive Rights, the American Civil Liberties Union, ACLU of North Carolina Legal Foundation, Planned Parenthood, and the law firm of O’Melveny & Myers.
In January of 2014, U.S. District Judge Catherine Eagles, struck down the requirement as unconstitutional, ruling that mandating abortion providers have such discussions with patients was too broad and a violation of free speech.
Eagles said that it was “an impermissible attempt to compel these providers to deliver the state’s message in favor of childbirth and against abortion.”
Eagles’ ruling would later be appealed by the state to the U.S. 4th Circuit Court of Appeals, but upheld in December of last year. The three-judge panel that heard the case described the law’s ultrasound provision as “ideological in intent and in kind.” The court said the means used “extend well beyond those (that) states have customarily employed to effectuate their undeniable interests in ensuring informed consent and protecting the sanctity of life in all its phases.”
Because Eagles blocked the law from going into effect and the U.S. 4th Circuit Court of Appeals knocked it down as unconstitutional, the requirement never became law. With the U.S. Supreme Court refusing to review the case, it suffered its final defeat.
All other portions of the Woman’s Right to Know Act passed in 2011, however, have not been challenged in the courts and remain as law.
In 2012, Texas had a different outcome than North Carolina. Like North Carolina, its ultrasound requirement was challenged in court by doctors who said it interfered with the doctor-patient relationship and made them “a mouthpiece of the state.” But a three-judge panel of the U.S. 5th Circuit Court of Appeals lifted a ban on the measure that had been imposed by U.S. District Court Judge Sam Sparks, declaring it constitutional and allowing it to become law.
The 5th Circuit’s ruling stated that, “The required disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information.” The court added that requiring physicians provide such information was pertinent for the “physical and psychological risks to the expectant mother,” as well as the state’s interest in protecting life.
The Oklahoma state legislature also passed an ultrasound law in 2010 that was struck down by the state Supreme Court. The U.S. Supreme Court was unwilling to review that case either, which left the state Supreme Court’s nullification of the measure intact.
The decision not to take up the cases in North Carolina and Oklahoma, while the 5th Circuit’s Texas decision sustained its ultrasound provision, now leaves the lower courts with no direction.
Rev. Mark Creech, executive director of the Christian Action League said, “The failure of the High Court to take up North Carolina’s ultrasound provision and to right the wrong of the lower courts will go down in history as a day of shame for our nation. A woman has a right to have all the information before making a decision to end her pregnancy. She needs to have to look into that window of the womb and see that little face looking back at her. To borrow from the words of Dr. Martin Luther King, Jr, ‘If we are wrong, the Constitution of the United States is wrong. And if we are wrong, God Almighty is wrong. If we are wrong, Jesus of Nazareth was merely a utopian dreamer that never came down to earth. If we are wrong, justice is a lie, love has no meaning.’”
According to National Right to Life, currently three states require an ultrasound be performed prior to an abortion (the screen must be displayed, so the mother can view it and a description of the unborn child must be given). Five states require an ultrasound be performed and the mother be offered the opportunity to view the ultrasound. Eleven states require the mother be provided with the opportunity to view an ultrasound, if the ultrasound is used as a part of the abortion process. Four states simply require the mother be provided with the opportunity to view an ultrasound.