Gretchen Stuart v. Paul Camnitz
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:11-cv-00804-CCE-LPA. [999498184]. [14-1150]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1150
GRETCHEN S. STUART, MD, on behalf of herself and her
patients seeking abortions; JAMES R. DINGFELDER, MD, on
behalf of himself and his patients seeking abortions; DAVID
A. GRIMES, MD, on behalf of himself and his patients
seeking abortions; AMY BRYANT, MD, on behalf of herself and
her patients seeking abortions; SERINA FLOYD, MD, on behalf
of herself and her patients seeking abortions; DECKER &
WATSON, INC., d/b/a Piedmont Carolina Medical Clinic;
PLANNED PARENTHOOD OF CENTRAL NORTH CAROLINA; A WOMAN'S
CHOICE OF RALEIGH, INC.; PLANNED PARENTHOOD HEALTH SYSTEMS,
INC.; TAKEY CRIST, on behalf of himself and his patients
seeking abortions; TAKEY CRIST, M.D., P.A., d/b/a Crist
Clinic for Women,
Plaintiffs - Appellees,
v.
PAUL S. CAMNITZ, MD, in his official capacity as President
of the North Carolina Medical Board and his employees,
agents and successors; ROY COOPER, in his official capacity
as Attorney General of North Carolina and his employees,
agents and successors; ALDONA ZOFIA WOS, in her official
capacity as Secretary of the North Carolina Department of
Health and Human Services and her employees, agents and
successors; JIM WOODALL, in his official capacity as
District Attorney ("DA") for Prosecutorial District ("PD")
15B and his employees, agents and successors; LEON STANBACK,
in his official capacity as DA for PD 14 and his employees,
agents and successors; DISTRICT ATTORNEY DOUGLAS HENDERSON,
in his official capacity as DA for PD 18 and his employees,
agents and successors; BILLY WEST, in his official capacity
as DA for PD 12 and his employees, agents and successors; C.
COLON WILLOUGHBY, JR., in his official capacity as DA for PD
10 and his employees, agents and successors; BENJAMIN R.
DAVID, in his official capacity as DA for PD 5 and his
employees, agents and successors; ERNIE LEE, in his official
capacity as DA for PD 4 and his employees, agents and
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successors; JIM O'NEILL, in his official capacity as DA for
PD 21 and his employees, agents and successors,
Defendants - Appellants,
JOHN THORP,
Intervenor/Defendant,
FRANCIS J. BECKWITH, MJS, PhD; GERARD V. BRADLEY; TERESA S.
COLLETT; DAVID K. DEWOLF; RICK DUNCAN; EDWARD M. GAFFNEY;
STEPHEN GILLES; MICHAEL STOKES PAULSEN; RONALD J. RYCHLAK;
RICHARD STITH; RUTH SAMUELSON; PAT MCELRAFT; PAT HURLEY;
MARILYN AVILA; SUSAN MARTIN; CAROLYN M JUSTICE; RENA W.
TURNER; MICHELE D. PRESNELL; SARAH STEVENS; JACQUELINE
MICHELLE SCHAFFER; DEBRA CONRAD; MARK BRODY; CHRIS WHITMIRE;
ALLEN MCNEILL; DONNY LAMBETH; GEORGE CLEVELAND; LINDA
JOHNSON; DAVID CURTIS; JOYCE KRAWIEC; SHIRLEY RANDLEMEN; DAN
SOUCEK; NORMAN SANDERSON; WARREN DANIEL; BUCK NEWTON; KATHY
L. HARRINGTON; ANDREW BROCK,
Amici Supporting Appellant,
AMERICAN
COLLEGE
AMERICAN
MEDICAL
ASSOCIATION,
OF
OBSTETRICIANS
AND
ASSOCIATION;
AMERICAN
GYNECOLOGISTS;
PUBLIC
HEALTH
Amici Supporting Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cv-00804-CCE-LPA)
Argued:
October 29, 2014
Decided:
December 22, 2014
Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.
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Affirmed by published opinion.
Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Duncan joined.
ARGUED: John Foster Maddrey, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants.
Julie
Rikelman, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York,
for Appellees. ON BRIEF: Roy Cooper, Attorney General, Gary R.
Govert, Assistant Solicitor General, I. Faison Hicks, Special
Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellants.
Christopher Brook,
AMERICAN
CIVIL
LIBERTIES
UNION
OF
NORTH
CAROLINA
LEGAL
FOUNDATION, Raleigh, North Carolina; Andrew D. Beck, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Jennifer
Sokoler, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York;
Walter Dellinger, Anton Metlitsky, Leah Godesky, O'MELVENY &
MYERS LLP, Washington, D.C.; Diana O. Salgado, New York, New
York, Helene T. Krasnoff, PLANNED PARENTHOOD FED. OF AMERICA,
Washington, D.C., for Appellees. Anna R. Franzonello, Mailee R.
Smith, William L. Saunders, Denise M. Burke, AMERICANS UNITED
FOR LIFE, Washington, D.C., for Amici Francis J. Beckwith, MJS,
PhD, Gerard V. Bradley, Teresa S. Collett, David K. Dewolf, Rick
Duncan, Edward M. Gaffney, Stephen Gilles, Michael Stokes
Paulsen, Ronald J. Rychlak, and Richard Stith.
Scott W.
Gaylord,
Jennings
Professor,
Thomas
J.
Molony,
Associate
Professor of Law, ELON UNIVERSITY SCHOOL OF LAW, Greensboro,
North Carolina, for Amici Ruth Samuelson, Pat McElraft, Pat
Hurley, Marilyn Avila, Susan Martin, Carolyn M. Justice, Rena W.
Turner, Michele D. Presnell, Sarah Stevens, Jacqueline Michelle
Schaffer, Debra Conrad, Mark Brody, Chris Whitmire, Allen
McNeill, Donny Lambeth, George Cleveland, Linda Johnson, David
Curtis, Joyce Krawiec, Shirley Randlemen, Dan Soucek, Norman
Sanderson, Warren Daniel, Buck Newton, Kathy L. Harrington, and
Andrew Brock. Kimberly A. Parker, Alathea E. Porter, Thaila K.
Sundaresan, Tiffany E. Payne, WILMER CUTLER PICKERING HALE AND
DORR LLP, Washington, D.C., for Amici American College of
Obstetricians
and
Gynecologists
and
American
Medical
Association.
Shannon Rose Selden, Courtney M. Dankworth,
DEBEVOISE & PLIMPTON LLP, New York, New York, for Amicus
American Public Health Association.
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WILKINSON, Circuit Judge:
At issue here is a North Carolina statute that requires
physicians to perform an ultrasound, display the sonogram, and
describe the fetus to women seeking abortions. A physician must
display and describe the image during the ultrasound, even if
the woman actively “avert[s] her eyes” and “refus[es] to hear.”
N.C.
Gen.
though
Stat.
is
it
ideological
Carolina
§ 90-21.85(b).
a
regulation
in
intent
extend
well
and
of
This
compelled
the
in
kind.
beyond
those
medical
The
even
profession,
means
states
speech,
used
have
by
is
North
customarily
employed to effectuate their undeniable interests in ensuring
informed consent and in protecting the sanctity of life in all
its phases. We thus affirm the district court’s holding that
this compelled speech provision violates the First Amendment.
I.
In July 2011, the North Carolina General Assembly passed
the Woman’s Right to Know Act over a gubernatorial veto. The Act
amended Chapter 90 of the North Carolina General Statutes, which
governs medical and related professions, adding a new article
regulating the steps that must precede an abortion.
Physicians
and
abortion
providers
filed
suit
after
the
Act’s passage but before its effective date, asking the court to
enjoin enforcement of the Act and declare it unconstitutional.
In
October
2011,
the
district
4
court
issued
a
preliminary
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injunction barring enforcement of one provision of the Act, the
Display
of
Real-Time
View
Requirement
(“the
Requirement”),
codified at N.C. Gen. Stat. § 90-21.85. J.A. 143-44. The court
subsequently allowed the plaintiffs to amend their complaint.
The Third Amended Complaint asserted that the Display of RealTime View Requirement violated the physicians’ First Amendment
free
speech
rights
and
the
physicians’
and
the
patients’
Fourteenth Amendment due process rights. J.A. 282. 1
The Display of Real-Time View Requirement obligates doctors
(or technicians) to perform an ultrasound on any woman seeking
an abortion at least four but not more than seventy-two hours
before the abortion is to take place. N.C. Gen. Stat. § 9021.85(a)(1). The physician must display the sonogram so that the
woman can see it, id. § 90-21.85(a)(3), and describe the fetus
in detail, “includ[ing] the presence, location, and dimensions
of the unborn child within the uterus and the number of unborn
children
depicted,”
id.
§ 90-21.85(a)(2),
as
well
as
“the
presence of external members and internal organs, if present and
viewable,” id. § 90-21.85(a)(4). The physician also must offer
1
The Third Amended Complaint also challenged both the
Display of Real-Time View Requirement and the Informed Consent
to
Abortion
provision,
N.C.
Gen.
Stat.
§
90-21.82,
as
unconstitutionally vague. J.A. 281. The parties and the district
court agreed on savings constructions so that the Act was not
void for vagueness, and the plaintiffs did not appeal that
ruling. Stuart v. Loomis, 992 F. Supp. 2d 585, 611 (M.D.N.C.
2014) (district court opinion).
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to allow the woman to hear the fetal heart tone. Id. § 9021.85(a)(2). The woman, however, may “avert[] her eyes from the
displayed
images”
and
“refus[e]
to
hear
the
simultaneous
explanation and medical description” by presumably covering her
eyes and ears. Id. § 90-21.85(b).
The Act provides an exception to these requirements only in
cases
of
medical
emergency.
Id.
§ 90-21.86.
Physicians
who
violate the Act are liable for damages and may be enjoined from
providing
further
abortions
that
violate
the
Act
in
North
Carolina. Id. § 90-21.88. Violation of the Act also may result
in
the
loss
14(a)(2)
of
(The
disciplinary
the
doctor’s
North
medical
license.
Medical
including
measures,
Carolina
license
See
Board
id.
may
revocation,
§ 90impose
upon
a
doctor who “[p]roduc[es] or attempt[s] to produce an abortion
contrary to law.”).
Not
consent
at
issue
in
this
provisions
to
appeal
which
are
several
physicians,
other
informed
independently
of
the
Display of Real-Time View Requirement, are subject. The first is
the
informed
consent
provision
of
the
Act
itself.
Id.
§ 90-
21.82. It requires that, at least twenty-four hours before an
abortion is to be performed, a doctor or qualified professional
explain
to
the
woman
seeking
the
abortion
the
risks
of
the
procedure, the risks of carrying the child to term, “and any
adverse psychological effects associated with the abortion.” Id.
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§ 90-21.82(1)(b),
“probable
(d).
The
gestational
Pg: 7 of 37
age
physician
of
the
must
unborn
also
convey
child,”
id.
the
§ 90-
21.82(1)(c), that financial assistance for the pregnancy may be
available, that the father of the child is obligated to pay
child support, and that there are alternatives to abortion, id.
§ 90-21.82(2)(a)-(d).
Furthermore,
the
doctor
must
inform
the
woman that she can view on a state-sponsored website materials
published by the state which describe the fetus. The doctor must
also give or mail the woman physical copies of the materials if
she wishes, and must “list agencies that offer alternatives to
abortion.” Id. § 90-21.82(2)(e).
Before this Act, physicians were still subject to North
Carolina’s general informed consent requirements when conducting
abortions.
See
14E.0305(a);
id.
§ 90-21.13(a);
Appellees’
Br.
6.
Prior
10A
to
N.C.
its
Admin.
Code
enactment,
the
physicians challenging the Act claim they were “inform[ing] each
patient about the nature of the abortion procedure, its risks
and benefits, and the alternatives available to the patient and
their
respective
risks
and
benefits”
and
“counsel[ing]
the
patient to ensure that she was certain about her decision to
have an abortion.” Appellees’ Br. 6.
Both
heightened,
parties
moved
intermediate
for
summary
scrutiny,
Stuart
judgment.
v.
Loomis,
Applying
992
F.
Supp. 2d 585, 600-01 (M.D.N.C. 2014), the district court held
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of
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Real-Time
View
Requirement
violated
the
physicians’ First Amendment rights to free speech. Id. at 60709. It thus granted the plaintiffs’ motion for summary judgment
and entered a permanent injunction. Id. at 610-11. The court
declined to reach the merits of the due process claim, finding
it moot in light of the court’s ruling on the First Amendment
claim. Id. at 611. 2
We
review
a
grant
of
summary
judgment
de
novo.
S.
Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d 560,
562 (4th Cir. 2014). In so doing, we view the facts in the light
most
favorable
to
the
state.
Moore-King
v.
Cnty.
of
Chesterfield, Va., 708 F.3d 560, 566 (4th Cir. 2013).
II.
A.
“Congress shall make no law . . . abridging the freedom of
speech.” U.S. Const. amend. I. This concept sounds simple, but
proves more complicated on closer inspection. Laws that impinge
upon
speech
receive
different
levels
of
judicial
scrutiny
depending on the type of regulation and the justifications and
purposes
underlying
it.
On
the
2
one
hand,
regulations
that
After the district court’s order granting the preliminary
injunction, several individuals and pregnancy counseling centers
moved to intervene as defendants. The district court denied the
motion, Stuart v. Huff, 2011 WL 6740400 (M.D.N.C. Dec. 22,
2011), and this court affirmed, Stuart v. Huff, 706 F.3d 345
(4th Cir. 2013).
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against
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speech
based
on
its
content
“are
presumptively invalid,” R.A.V. v. City of St. Paul, Minn., 505
U.S.
377,
382
(1992),
and
courts
usually
“apply
the
most
exacting scrutiny,” Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 642 (1994); see also United States v. Playboy Entm’t Grp.,
Inc., 529 U.S. 803, 814 (2000). On the other hand, “area[s]
traditionally
subject
to
government
regulation,”
such
as
commercial speech and professional conduct, typically receive a
lower level of review. Cent. Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm’n of N.Y., 447 U.S. 557, 562-63 (1980) (regulation of
commercial speech); see also Keller v. State Bar of Cal., 496
U.S. 1, 13-16 (1990) (regulation of legal profession).
We thus must first examine the type of regulation at issue
to determine the requisite level of scrutiny to apply. Turner,
512 U.S. at 637 (explaining that “because not every interference
with speech triggers the same degree of scrutiny under the First
Amendment, we must decide at the outset the level of scrutiny
applicable”). As we do, we are mindful of “the First Amendment’s
command that government regulation of speech must be measured in
minimums, not maximums.” Riley v. Nat’l Fed’n of the Blind of
N.C., Inc., 487 U.S. 781, 790 (1988).
The physicians urge us to find that the regulation must
receive
strict
scrutiny
because
it
is
content-based
and
ideological. See Appellees’ Br. 36-40. The state counters that
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the Requirement must be treated as a regulation of the medical
profession in the context of abortion and thus subject only to
rational
basis
review.
district
court
chose
See
a
different
Requirement
both
compelled
profession,
the
court
rational
standard
basis
review,
normally
Appellants’
but
used
path.
speech
applied
and
7-15,
20-28.
Recognizing
regulated
neither
rather
for
Br.
the
strict
that
the
certain
commercial
the
medical
scrutiny
intermediate
The
nor
scrutiny
speech
regulations. See Stuart v. Loomis, 992 F. Supp. 2d 585, 598-601
(M.D.N.C. 2014). For the reasons outlined below, we agree with
the
district
court
that
the
Requirement
is
a
content-based
regulation of a medical professional’s speech which must satisfy
at least intermediate scrutiny to survive.
B.
The Display of Real-Time View Requirement regulates both
speech and conduct. The physician must convey the descriptions
mandated by the statute in his or her own voice. The sonogram
display
is
also
intimately
connected
with
the
describing
requirement. The two are thus best viewed as a single whole. In
deciding whether an activity “possesses sufficient communicative
elements to bring the First Amendment into play, we have asked
whether
‘[a]n
intent
to
convey
a
particularized
message
was
present, and [whether] the likelihood was great that the message
would be understood by those who viewed it.’” Texas v. Johnson,
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491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S.
405,
410–11
anticipated
(1974)).
effect
of
The
all
state’s
aspects
avowed
of
the
intent
and
Requirement
are
the
to
discourage abortion or at the very least cause the woman to
reconsider her decision. See Appellants’ Br. 29-32. The clear
import of displaying the sonogram in this context -- while the
woman who has requested an abortion is partially disrobed on an
examination table -- is to use the visual imagery of the fetus
to
dissuade
procedure.
message,
the
If
the
patient
the
from
state’s
message
does
continuing
intent
not
is
lose
its
the
planned
convey
to
with
a
distinct
expressive
character
because it happens to be delivered by a private party. Whether
one agrees or disagrees with the state’s approach here cannot be
the question. In this context, the display of the sonogram is
plainly
an
expressive
act
entitled
to
First
Amendment
protection. See, e.g., John Doe No. 1 v. Reed, 561 U.S. 186,
194-95
(2010)
(recognizing
First
Amendment
protections
for
signing a referendum petition); Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495, 501-02 (1952) (commercial film).
The First Amendment not only protects against prohibitions
of
speech,
but
also
against
regulations
that
compel
speech.
“Since all speech inherently involves choices of what to say and
what
to
leave
unsaid,
one
important
manifestation
of
the
principle of free speech is that one who chooses to speak may
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also decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian &
Bisexual
Grp.
of
Bos.,
515
U.S.
557,
573
(1995)
(citations
omitted) (internal quotation marks omitted); see also Wooley v.
Maynard, 430 U.S. 705, 714 (1977) (“[T]he First Amendment . . .
includes both the right to speak freely and the right to refrain
from speaking at all.”). A regulation compelling speech is by
its very nature content-based, because it requires the speaker
to change the content of his speech or even to say something
where
he
would
(“Mandating
otherwise
speech
that
be
a
silent.
speaker
Riley,
would
487
not
U.S.
at
otherwise
795
make
necessarily alters the content of the speech.”); Centro Tepeyac
v. Montgomery Cnty., 722 F.3d 184, 189 (4th Cir. 2013) (en banc)
(same). Compelled speech is particularly suspect because it can
directly affect listeners as well as speakers. Listeners may
have difficulty discerning that the message is the state’s, not
the
speaker’s,
especially
where
the
“speaker
[is]
intimately
connected with the communication advanced.” Hurley, 515 U.S. at
576.
The
Requirement
is
quintessential
compelled
speech.
It
forces physicians to say things they otherwise would not say.
Moreover,
the
statement
compelled
here
is
ideological;
it
conveys a particular opinion. The state freely admits that the
purpose and anticipated effect of the Display of Real-Time View
Requirement is to convince women seeking abortions to change
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their minds or reassess their decisions. See Appellants’ Br. 2932.
It may be true, as the Fifth Circuit has noted, that “the
required disclosures . . . are the epitome of truthful, nonmisleading information.” Tex. Med. Providers Performing Abortion
Servs. v. Lakey, 667 F.3d 570, 577-78 (5th Cir. 2012). But an
individual’s “right to tailor [his] speech” or to not speak at
all “applies . . . equally to statements of fact the speaker
would rather avoid.” Hurley, 515 U.S. at 573; see also Sorrel v.
IMS Health Inc., 131 S. Ct. 2653, 2667 (2011); Turner, 512 U.S.
at 645; Riley, 487 U.S. at 797-98. While it is true that the
words the state puts into the doctor’s mouth are factual, that
does
not
divorce
implications.
the
speech
“[C]ontext
from
matters.”
its
moral
Greater
or
Balt.
ideological
Ctr.
for
Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 286
(4th Cir. 2013) (en banc). Of course we need not go so far as to
say that every required description of a typical fetus is in
every context ideological. But this Display of Real-Time View
Requirement explicitly promotes a pro-life message by demanding
the provision of facts that all fall on one side of the abortion
debate -- and does so shortly before the time of decision when
the intended recipient is most vulnerable.
The state protests that the Requirement does not dictate a
specific script and that the doctor is free to supplement the
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information with his own opinion about abortion. Reply Br. 1416. That is true; the state does not demand that the doctor use
particular words. But that does not mean that the Requirement is
“not designed to favor or disadvantage speech of any particular
content.”
Turner,
512
U.S.
at
652.
In
fact,
the
clear
and
conceded purpose of the Requirement is to support the state’s
pro-life position. That the doctor may supplement the compelled
speech with his own perspective does not cure the coercion -the government’s message still must be delivered (though not
necessarily received).
Content-based
regulations
of
speech
typically
receive
strict scrutiny. Id. at 642. The state, however, maintains that
the
Requirement
is
merely
a
regulation
of
the
practice
of
medicine that need only satisfy rational basis review. We turn
now to that contention. 3
C.
The state’s power to prescribe rules and regulations for
professions, including medicine, has an extensive history. See
3
Plaintiffs seem to suggest that the Display of Real-Time
View Requirement constitutes viewpoint discrimination and that
we should strike the provision down on that basis. See
Appellees’ Br. 2, 54. Because we find that the Requirement fails
even intermediate scrutiny, infra Part III, it is unnecessary
for us to definitively determine whether the compelled speech
here requires strict scrutiny. See Greater Balt., 721 F.3d at
288 (cautioning against “precipitately concluding that the
[provision] is an exercise of viewpoint discrimination”).
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Dent v. West Virginia, 129 U.S. 114, 122 (1889) (“[I]t has been
the practice of different states, from time immemorial, to exact
in many pursuits a certain degree of skill and learning upon
which
the
community
may
confidently
rely.”).
Licensing
and
regulation by the state “provide clients with the confidence
they require to put their health or their livelihood in the
hands of those who utilize knowledge and methods with which the
clients ordinarily have little or no familiarity.” King v. Gov.
of
N.J.,
767
establish
F.3d
216,
licensing
232
(3d
Cir.
qualifications,
2014).
Dent,
129
The
U.S.
state
may
at
122,
oblige the payment of dues to a professional organization for
purposes such as “disciplining members” and “proposing ethical
codes,” Keller, 496 U.S. at 16, and even set standards for the
conduct of professional activities, Barsky v. Bd. of Regents of
Univ. of State of N.Y., 347 U.S. 442, 449-50 (1954). In the
medical
context,
information
the
sufficient
state
for
may
require
patients
to
the
give
provision
their
of
informed
consent to medical procedures, see Canterbury v. Spence, 464
F.2d 772, 781 (D.C. Cir. 1972), and patients may seek damages
when
doctors
fail
to
follow
statutory
and
professionally
recognized norms, see, e.g, N.C. Gen. Stat. § 90-21.88. Simply
put, “[t]he power of government to regulate the professions is
not lost whenever the practice of a profession entails speech.”
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Lowe v. SEC, 472 U.S. 181, 228 (1985) (White, J., concurring in
the judgment).
But
that
does
not
mean
that
individuals
simply
abandon
their First Amendment rights when they commence practicing a
profession. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 884 (1992) (plurality opinion) (“[T]he physician’s First
Amendment
added));
rights
not
to
speak
are
implicated.”
(emphasis
Lowe, 472 U.S. at 229-30 (White, J., concurring in the
judgment) (“But the principle that the government may restrict
entry into professions and vocations through licensing schemes
has never been extended to encompass the licensing of speech per
se or of the press.”). To the contrary, “speech is speech, and
it
must
be
analyzed
as
such
for
purposes
of
the
First
Amendment.” King, 767 F.3d at 229. There are “many dimensions”
to professionals’ speech. Fla. Bar v. Went For It, Inc., 515
U.S. 618, 634 (1995). And “[t]here are circumstances in which we
will accord speech by attorneys on public issues and matters of
legal representation the strongest protection our Constitution
has to offer.” Id. With all forms of compelled speech, we must
look to the context of the regulation to determine when the
state’s regulatory authority has extended too far. Riley, 487
U.S. at 796.
When the First Amendment rights of a professional are at
stake, the stringency of review thus slides “along a continuum”
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from “public dialogue” on one end to “regulation of professional
conduct” on the other. Pickup v. Brown, 740 F.3d 1208, 1227,
1229 (9th Cir. 2013) (emphasis in original). Other circuits have
recently relied on the distinction between professional speech
and professional conduct when deciding on the appropriate level
of scrutiny to apply to regulations of the medical profession.
See King, 767 F.3d at 224-29, 233-37; Wollschlaeger v. Gov. of
Fla., 760 F.3d 1195, 1217-25 (11th Cir. 2014).
The Display of Real-Time View Requirement resides somewhere
in the middle on that sliding scale. It is a regulation of
medical treatment insofar as it directs doctors to do certain
things in the context of treating a patient. In that sense, the
government
can
lay
claim
to
its
stronger
interest
in
the
regulation of professional conduct. But that is hardly the end
of
the
potent
matter.
in
the
The
government’s
context
of
a
regulatory
interest
self-regulating
is
less
profession
like
medicine. Moore-King v. Cnty. of Chesterfield, Va., 708 F.3d
560, 570 (4th Cir. 2013). Moreover, the Requirement is a clearly
content-based regulation of speech; it requires doctors to “say”
as well as “do.” As the district court found, the confluence of
these factors points toward borrowing a heightened intermediate
scrutiny
standard
used
in
certain
commercial
speech
cases.
Stuart, 992 F. Supp. 2d at 600. Thus, we need not conclusively
determine
whether
strict
scrutiny
17
ever
applies
in
similar
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situations,
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because
in
this
Pg: 18 of 37
case
“the
outcome
is
the
same
whether a special commercial speech inquiry or a stricter form
of judicial scrutiny is applied.” Sorrel, 131 S. Ct. at 2667.
D.
Insofar
as
our
decision
on
the
applicable
standard
of
review differs from the positions taken by the Fifth and Eighth
Circuits in cases examining the constitutionality of abortion
regulations under the First Amendment, we respectfully disagree.
Both courts relied heavily on a single paragraph in Casey:
All that is left of petitioners' argument is an
asserted First Amendment right of a physician not to
provide information about the risks of abortion, and
childbirth, in a manner mandated by the State. To be
sure, the physician's First Amendment rights not to
speak are implicated, see Wooley v. Maynard, 430 U.S.
705 (1977), but only as part of the practice of
medicine,
subject
to
reasonable
licensing
and
regulation by the State, cf. Whalen v. Roe, 429 U.S.
589, 603 (1977). We see no constitutional infirmity in
the
requirement
that
the
physician
provide
the
information mandated by the State here.
505 U.S. at 884; see also Lakey, 667 F.3d at 574-76; Planned
Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889, 893 (8th
Cir. 2012) (en banc) (“Rounds II”); Planned Parenthood Minn.,
N.D., S.D. v. Rounds, 530 F.3d 724, 733-35 (8th Cir. 2008) (en
banc)
(“Rounds
I”).
That
is
the
sum
of
the
First
Amendment
analysis in Casey.
In
considering
an
ultrasound
display-and-describe
requirement similar to the one at issue here, the Fifth Circuit
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interpreted
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Casey
as
Pg: 19 of 37
employing
“the
antithesis
of
strict
scrutiny.” Lakey, 667 F.3d at 575. It further noted that in
Gonzales
v.
Carhart,
the
Supreme
Court
“upheld
a
state’s
‘significant role . . . in regulating the medical profession.’”
Lakey, 667 F.3d at 575-76 (quoting Gonzales v. Carhart, 550 U.S.
124,
157
(2007)).
Therefore,
the
Lakey
court
reasoned,
provisions such as the one at issue here -- that is, laws that
“require truthful, nonmisleading, and relevant disclosures,” id.
at
576
--
“do
‘ideological’
not
fall
under
the
speech
that
triggers
rubric
First
of
compelling
Amendment
strict
scrutiny,” id. The Eighth Circuit similarly drew from Casey and
Gonzales the rule that the First Amendment permits the state to
“use its regulatory authority to require a physician to provide
truthful,
non-misleading
information
relevant
to
a
patient’s
decision to have an abortion.” Rounds I, 530 F.3d at 734-35; see
also Rounds II, 686 F.3d at 893.
With respect, our sister circuits read too much into Casey
and Gonzales. The single paragraph in Casey does not assert that
physicians
procedures
forfeit
their
surrounding
First
abortions,
Amendment
nor
does
rights
it
in
announce
the
the
proper level of scrutiny to be applied to abortion regulations
that compel speech to the extraordinary extent present here. The
plurality opinion stated that the medical profession is “subject
to reasonable licensing and regulation by the State” and that
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physicians’ speech is “part of the practice of medicine.” Casey,
505 U.S. at 884. But the plurality did not hold sweepingly that
all regulation of speech in the medical context merely receives
rational
basis
review.
Rather,
having
noted
the
physicians’
First Amendment rights and the state’s countervailing interest
in
regulating
stated
that
the
it
medical
saw
“no
profession,
the
constitutional
plurality
infirmity
simply
in
the
requirement that the physician provide the information mandated
by the State here.” Id. (emphasis added). That particularized
finding hardly announces a guiding standard of scrutiny for use
in every subsequent compelled speech case involving abortion.
Furthermore,
the
Fifth
and
Eighth
Circuits’
reliance
on
Gonzales seems inapposite. Gonzales was not a First Amendment
case; the plaintiffs there did not bring free speech claims. See
Carhart v. Ashcroft, 331 F. Supp. 2d 805, 814 (D. Neb. 2004);
Planned Parenthood Fed’n of Am. v. Ashcroft, 320 F. Supp. 2d
957, 967 (N.D. Cal. 2004). Thus Gonzales does not elucidate the
First
Amendment
standard
applied
in
Casey.
Gonzales
provides
valuable insight into the relationship between the state and the
medical profession and the role the state may play in ensuring
that
women
are
properly
informed
before
making
what
is
indisputably a profound choice with permanent and potentially
harmful impacts. See infra Part III. But it says nothing about
the level of scrutiny courts should apply when reviewing a claim
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a
violates
regulation
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compelling
physicians’
First
Pg: 21 of 37
speech
Amendment
in
the
free
abortion
speech
context
rights.
The
fact that a regulation does not impose an undue burden on a
woman under the due process clause does not answer the question
of whether it imposes an impermissible burden on the physician
under the First Amendment. A heightened intermediate level of
scrutiny is thus consistent with Supreme Court precedent and
appropriately recognizes the intersection here of regulation of
speech and regulation of the medical profession in the context
of an abortion procedure. 4
III.
Under an intermediate standard of scrutiny, the state bears
the burden of demonstrating “at least that the statute directly
advances
a
substantial
governmental
interest
and
that
the
measure is drawn to achieve that interest.” Sorrel v. IMS Health
Inc., 131 S. Ct. 2653, 2667-68 (2011). This formulation seeks to
“ensure not only that the State's interests are proportional to
the resulting burdens placed on speech but also that the law
4
The state’s amici insist that the decision we reach today
will permit future litigants to use the First Amendment “as a
‘trump
card’
in
a
multitude
of
challenges
to
abortion
regulations, allowing abortion proponents to provoke a ‘backdoor,’ strict scrutiny approach” that will override Casey’s
undue burden standard. Law Professors’ Br. 27. We think this
concern is overdrawn. The great majority of abortion regulations
do not compel anyone’s speech, and the great majority of
litigants do not raise First Amendment concerns.
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does not seek to suppress a disfavored message.” Id. at 2668.
The court can and should take into account the effect of the
regulation on the intended recipient of the compelled speech,
especially
where
she
is
a
captive
listener.
See
Hill
v.
Colorado, 530 U.S. 703, 716-18 (2000); Va. State Bd. of Pharmacy
v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756-57
(1976); Greater Balt. Ctr. For Pregnancy Concerns, Inc. v. Mayor
of Balt., 721 F.3d 264, 286 (4th Cir. 2013) (en banc); cf. Lee
v. Weisman, 505 U.S. 577, 598 (1992).
The
protection
interests
of
of
fetal
protecting
life,
the
along
pregnant
with
the
woman’s
companion
psychological
health and ensuring that “so grave a choice is well informed,”
Gonzales,
550
U.S.
at
159,
is
undeniably
an
important
state
interest. The Supreme Court has repeatedly affirmed the state’s
“important
and
legitimate
interest”
in
preserving,
promoting,
and protecting fetal life. Roe v. Wade, 410 U.S. 113, 162 (1973)
(quoted in Casey, 505 U.S. at 871); see also Gonzales, 550 U.S.
at 145. We shall presume for the purpose of this appeal that
this statute protects fetal life by increasing the likelihood
that a woman will not follow through on the decision to have an
abortion. Nonetheless, the means used to promote a substantial
state
interest
interest
must
without
be
drawn
impeding
so
too
as
to
greatly
directly
on
advance
individual
the
liberty
interests or competing state concerns. Sorrel, 131 S. Ct. at
22
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2667-68.
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The
means
employed
Pg: 23 of 37
here
are
far-reaching
--
almost
unprecedentedly so -- in a number of respects and far outstrip
the provision at issue in Casey. See Casey, 505 U.S. at 881.
This statutory provision interferes with the physician’s right
to
free
speech
regulation
threatening
interfering
of
beyond
the
harm
with
the
medical
to
the
the
extent
permitted
profession,
patient’s
physician’s
for
while
reasonable
simultaneously
psychological
professional
health,
judgment,
and
compromising the doctor-patient relationship. We must therefore
find the Display of Real-Time View Requirement unconstitutional.
A.
Before
addressing
the
provision’s
constitutional
infirmities, it is well worth identifying briefly the various
state interests at stake in this case. As we noted above, the
Supreme
Court
has
forcefully
reiterated
that
the
state’s
interest in protecting fetal life is important and profound.
This
interest
protecting
and
recognized
in
derives
from
promoting
abortion
the
state’s
respect
decisions
for
general
life,
without
interest
and
number.
has
See,
in
been
e.g.,
Gonzales, 550 U.S. at 158; Casey, 505 U.S. at 871; Greenville
Women’s Clinic v. Bryant, 222 F.3d 157, 165-66 (4th Cir. 2000).
We do not question the substantial state interest at work here.
As part of its general interest in promoting the health of
its citizens, the state also has an interest in promoting the
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psychological health of women seeking abortions. Appellants’ Br.
17.
The
state
psychological
may
harm
seek
of
to
protect
“com[ing]
to
women
regret
both
from
their
the
choice,”
Gonzales, 550 U.S. at 159, as well as the psychological harm
from the process of obtaining an abortion itself. The Supreme
Court has also recognized a state interest in maintaining “the
integrity and ethics of the medical profession,” which includes
promoting a healthy doctor-patient relationship, Washington v.
Glucksberg, 521 U.S. 702, 731 (1997); see also Gonzales, 550
U.S. at 157, and respecting physicians’ professional judgment,
see Casey, 505 U.S. at 884.
However, that important state interests are implicated in
the
abortion
analysis.
context
Though
is
only
physicians
and
the
starting
other
point
for
professionals
our
may
be
subject to regulations by the state that restrict their First
Amendment
freedoms
when
acting
in
the
course
of
their
professions, professionals do not leave their speech rights at
the office door. See Lowe v. SEC, 472 U.S. 181, 229-30 (1985)
(White, J., concurring in the judgment). Any state regulation
that limits the free speech rights of professionals must pass
the requisite constitutional test. The Display of Real-Time View
Requirement must directly advance an important state interest in
a manner that is drawn to that interest and proportional to the
burden placed on the speech. See Sorrel, 131 S. Ct. at 2667-68.
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B.
North Carolina contends that the Display of Real-Time View
Requirement is merely “reasonable . . . regulation by the State”
of the medical profession that does not violate the physicians’
First
Amendment
requirements
do.
rights
any
more
Appellants’
Br.
than
22-25
informed
(quoting
consent
Tex.
Med.
Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 575
(5th
Cir.
2012)
requirements
the
(quoting
provision
Casey,
505
imposes
on
U.S.
at
882)).
physicians,
The
however,
resemble neither traditional informed consent nor the variation
found in the Pennsylvania statute at issue in Casey. The North
Carolina statute goes much further, imposing additional burdens
on the physicians’ free speech and risking the compromise of
other important state interests.
Traditional informed consent requirements derive from the
principle of patient autonomy in medical treatment. Grounded in
self-determination, obtaining informed consent prior to medical
treatment
is
information
meant
she
to
needs
ensure
to
that
each
meaningfully
patient
consent
to
has
“the
medical
procedures.” Am. Coll. of Obstetricians & Gynecologists & the
Am. Med. Ass’n (“ACOG & AMA”) Br. 5; see also AMA, Op. 8.08 –
Informed Consent (2006). As the term suggests, informed consent
consists
of
two
essential
elements:
comprehension
and
free
consent. ACOG & AMA Br. 7; ACOG, Comm. Op. No. 439 - Informed
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Consent, at 2 (2012). Comprehension requires that the physician
convey adequate information about the diagnosis, the prognosis,
alternative treatment options (including no treatment), and the
risks and likely results of each option. ACOG & AMA Br. 7; ACOG,
Comm. Op. No. 439, at 3, 5; see also J.A. 359 (declaration of
Dr. Anne Drapkin Lyerly); Canterbury v. Spence, 464 F.2d 772,
780-81
(D.C.
information
Cir.
for
1972).
each
Physicians
patient
determine
based
on
what
the
“adequate”
a
reasonable
physician would convey, what a reasonable patient would want to
know, and what the individual patient would subjectively wish to
know
given
the
patient’s
individualized
needs
and
treatment
circumstances. ACOG, Comm. Op. No. 439, at 5. Free consent, as
it suggests, requires that the patient be able to exercise her
autonomy free from coercion. Id. at 3, 5. It may even include at
times the choice not to receive certain pertinent information
and to rely instead on the judgment of the doctor. Id. at 7;
ACOG & AMA Br. 8. The physician’s role in this process is to
inform and assist the patient without imposing his or her own
personal
will
and
values
on
the
patient.
J.A.
359-60
(declaration of Dr. Anne Drapkin Lyerly); ACOG, Comm. Op. No.
439, at 3. The informed consent process typically involves a
conversation
between
physician
an
in
the
office
or
patient,
similar
fully
room
clothed,
before
the
and
the
procedure
begins. ACOG & AMA Br. 8, 23; ACOG, Comm. Op. No. 439, at 4.
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Once the patient has received the information she needs, she
signs a consent form, and treatment may proceed. See, e.g., N.C.
Gen. Stat. § 90-21.13(b).
The Pennsylvania statute challenged in Casey prescribes a
modified
form
of
informed
consent
for
abortions.
To
provide
informed consent, the statute first requires the physician to
orally inform the woman of the nature of the abortion procedure,
the
“risks
reasonable
and
alternatives
patient
would
to
the
consider
procedure . . . that
material
to
the
a
decision”
whether to have an abortion, the risks of carrying the child to
term, and the “probable gestational age of the unborn child”
when
the
abortion
is
to
be
performed.
18
Pa.
Cons.
Stat.
§ 3205(a)(1). The physician must give this information at least
twenty-four
hours
prior
to
the
abortion.
Id.
Aside
from
the
gestational age of the fetus, this information is the same type
that would be required under traditional informed consent for
any medical procedure.
The
statute
continues
on,
however,
to
require
that
the
physician must inform the woman, at least twenty-four hours in
advance,
that
the
state
prints
materials
that
describe
the
unborn child, and a copy must be provided to her if she wants
it. 18 Pa. Cons. Stat. § 3205(a)(2)-(3). Finally, the statute
requires the physician to provide some additional information
about financial and other assistance that may be available from
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the state and the father. 18 Pa. Cons. Stat. § 3205(a)(2). These
provisions
consent.
deviate
They
only
also
modestly
closely
from
resemble
traditional
the
informed
informed
consent
provisions of North Carolina’s Woman’s Right to Know Act that
are not under challenge in this appeal. N.C. Gen. Stat. § 9021.82(1)-(2).
The
challenged
Display
of
Real-Time
View
Requirement, N.C. Gen. Stat. § 90-21.85, however, reaches beyond
the modified form of informed consent that the Court approved in
Casey. In so doing, it imposes a virtually unprecedented burden
on
the
right
of
professional
speech
that
operates
to
the
from
the
detriment of both speaker and listener.
C.
The
burdens
trace
in
part
from
deviations
traditions of informed consent. The most serious deviation from
standard practice is requiring the physician to display an image
and provide an explanation and medical description to a woman
who
has
through
ear
and
eye
covering
rendered
herself
temporarily deaf and blind. This is starkly compelled speech
that impedes on the physician’s First Amendment rights with no
counterbalancing promotion of state interests. The woman does
not receive the information, so it cannot inform her decision.
In
fact,
“[t]he
state’s
own
expert
witness
agrees
that
the
delivery of the state’s message in these circumstances does not
provide
any
information
to
the
28
patient
and
does
not
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voluntary and informed consent.” Stuart v. Loomis, 992 F. Supp.
2d 585, 602 (M.D.N.C. 2014). And while having to choose between
blindfolding and earmuffing herself or watching and listening to
unwanted information may in some remote way influence a woman in
favor of carrying the child to term, forced speech to unwilling
or incapacitated listeners does not bear the constitutionally
necessary connection to the protection of fetal life. Moreover,
far
from
promoting
the
psychological
health
of
women,
this
requirement risks the infliction of psychological harm on the
woman
endure
who
chooses
the
not
to
embarrassing
receive
spectacle
this
of
information.
averting
her
She
must
eyes
and
covering her ears while her physician -- a person to whom she
should be encouraged to listen -- recites information to her. 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.
The
rights
constitutional
is
not
lifted
burden
by
on
having
the
a
physicians’
willing
expressive
listener.
The
information the physician had to convey orally in Casey was no
more than a slight modification of traditional informed consent
disclosures. The information conveyed here in the examining room
more closely resembles the materials that in Casey were provided
by the state in a pamphlet. Casey, 505 U.S. at 881. A physician
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in
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Pennsylvania
need
only
Pg: 30 of 37
inform
the
patient
that
such
information is available and, if requested, provide her with a
copy
of
the
state-issued
pamphlet.
18
Pa.
Cons.
Stat.
§ 3205(a)(2)(i) & (a)(3). Informing a patient that there are
state-issued materials available is not ideological, because the
viewpoint conveyed by the pamphlet is clearly the state’s -- not
the physician’s. It is no wonder then that the Casey court found
no First Amendment infirmities in that requirement. By contrast,
the North Carolina statute compels the physician to speak and
display
state
the
would
very
information
like
21.85(a)(2)-(4).
to
The
on
a
See
convey.
coercive
volatile
N.C.
effects
subject
Gen.
of
that
Stat.
the
speech
the
§ 90are
magnified when the physician is compelled to deliver the state’s
preferred
message
in
his
or
her
own
voice.
This
Requirement
treads far more heavily on the physicians’ free speech rights
than the state pamphlet provisions at issue in Casey.
Though the information conveyed may be strictly factual,
the
context
surrounding
the
delivery
of
it
promotes
the
viewpoint the state wishes to encourage. As a matter of policy,
the state may certainly express a preference for childbirth over
abortion, Webster v. Reprod. Health Servs., 492 U.S. 490, 511
(1989), and use its agents and written materials to convey that
message. However the state cannot commandeer the doctor-patient
relationship to compel a physician to express its preference to
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patient.
As
the
district
Pg: 31 of 37
court
noted,
“[b]y
requiring
providers to deliver this information to a woman who takes steps
not to hear it or would be harmed by hearing it, the state has
. . . moved from ‘encouraging’ to lecturing, using health care
providers as its mouthpiece.” Stuart, 992 F. Supp. 2d at 609.
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. See Am. Pub. Health Ass’n (“APHA”) Br. 9-10.
The patient seeks in a physician a medical professional with the
capacity
for
independent
medical
judgment
that
professional
status implies. The rupture of trust comes with replacing what
the doctor’s medical judgment would counsel in a communication
with
what
the
state
wishes
told.
It
subverts
the
patient’s
expectations when the physician is compelled to deliver a state
message bearing little connection to the search for professional
services that led the patient to the doctor’s door.
Furthermore, by failing to include a therapeutic privilege
exception, the Display of Real-Time View Requirement interferes
with
the
physician’s
professional
judgment
and
ethical
obligations. The absence of a therapeutic exception means that
the state has sought not only to control the content of the
physician’s
speech,
but
to
dictate
its
timing.
Under
the
Requirement, the physician must display and describe the fetus
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simultaneously with the ultrasound procedure, and he must do
this at least four and not more than seventy-two hours prior to
the
abortion
procedure.
See
N.C.
Gen.
Stat.
§ 90-21.85(a).
Therapeutic privilege, however, permits physicians to decline or
at least wait to convey relevant information as part of informed
consent because in their professional judgment delivering the
information to the patient at a particular time would result in
serious psychological or physical harm. ACOG, Comm. Op. 439, at
7. It is an important privilege, albeit a limited one to be used
sparingly.
See
id.
It
protects
the
health
of
particularly
vulnerable or fragile patients, and permits the physician to
uphold his ethical obligations of benevolence.
The Casey court found it relevant that the Pennsylvania
statute contained a therapeutic exception so that it “does not
prevent
the
judgment.”
physician
505
U.S.
from
at
exercising
883-84.
his
North
or
Carolina
her
medical
by
contrast
requires the physician to “[d]isplay the images” and “[p]rovide
a simultaneous explanation of what the display is depicting”
along
with
“a
medical
description
of
the
images,”
with
no
exception. N.C. Gen. Stat. § 90-21.85(a)(2)-(4). The lack of a
provision similar to Pennsylvania’s in North Carolina’s statute
runs
contrary
to
the
state’s
interest
in
“protecting
the
integrity and ethics of the medical profession,” Gonzales, 550
U.S.
at
157,
and
more
generally
32
to
its
interest
in
the
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psychological
Filed: 12/22/2014
and
physical
Pg: 33 of 37
well-being
of
the
affected
women.
Particularly for women who have been victims of sexual assaults
or whose fetuses are nonviable or have severe, life-threatening
developmental
abnormalities,
having
to
watch
a
sonogram
and
listen to a description of the fetus could prove psychologically
devastating. See J.A. 332-33 (declaration of Dr. Gretchen S.
Stuart);
Appellees’
physician
to
Br.
provide
12-13;
the
APHA
Br.
information
8-9.
Requiring
regardless
of
the
the
psychological or emotional well-being of the patient, see N.C.
Gen.
Stat.
§§
90-21.85
&
90-21.86,
can
hardly
be
considered
closely drawn to those state interests the provision is supposed
to promote.
In sum, though the State would have us view this provision
as simply a reasonable regulation of the medical profession,
these
requirements
look
nothing
like
traditional
informed
consent, or even the versions provided for in Casey and in N.C.
Gen. Stat. § 90-21.82. As such, they impose an extraordinary
burden on expressive rights. The three elements discussed so far
-- requiring the physician to speak to a patient who is not
listening, rendering the physician the mouthpiece of the state’s
message, and omitting a therapeutic privilege to protect the
health of the patient -- markedly depart from standard medical
practice.
D.
33
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Other aspects of the Requirement are equally unusual. As
described
above,
fully-clothed
informed
conversation
consent
between
frequently
the
consists
patient
and
of
a
physician,
often in the physician’s office. It is driven by the “patient’s
particular needs and circumstances,” J.A. 388 (declaration of
Dr. Amy Weil), so that the patient receives the information he
or
she
wants
in
a
setting
that
promotes
an
informed
and
thoughtful choice.
This provision, however, finds the patient half-naked or
disrobed on her back on an examination table, with an ultrasound
probe
either
Appellees’
Br.
on
her
13;
belly
APHA
or
Br.
inserted
8.
into
Informed
her
consent
vagina.
has
not
generally been thought to require a patient to view images from
his or her own body, ACOG & AMA Br. 7, much less in a setting in
which personal judgment may be altered or impaired. Yet this
provision requires that she do so or “avert[] her eyes.” N.C.
Gen.
Stat.
§ 90-21.85(a)(3),
(b).
Rather
than
engaging
in
a
conversation calculated to inform, the physician must continue
talking
regardless
of
whether
the
patient
is
listening.
See
Stuart, 992 F. Supp. 2d at 590 & 602 n.34. The information is
provided irrespective of the needs or wants of the patient, in
direct
contravention
of
medical
ethics
and
the
principle
of
patient autonomy. “[F]orcing this experience on a patient over
her objections” in this manner interferes with the decision of a
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patient
Filed: 12/22/2014
not
to
receive
Pg: 35 of 37
information
that
could
make
an
indescribably difficult decision even more traumatic and could
“actually cause harm to the patient.” J.A. 330 (declaration of
Dr. Gretchen S. Stuart). And it is intended to convey not the
risks and benefits of the medical procedure to the patient’s own
health,
but
rather
the
full
weight
of
the
state’s
moral
condemnation. Though the state is plainly free to express such a
preference for childbirth to women, it is not the function of
informed consent to require a physician to deliver the state’s
preference in a setting this fraught with stress and anxiety.
There
are
few
absolutes
in
the
difficult
area
of
professional regulation and professional expression. But there
do exist constraints on the permissible interference with the
doctor-patient relationship; there are limits on state attempts
to compel physicians to deliver its message, especially when
that
message
judgment
runs
the
and
information
legislation
counter
patient’s
she
to
wants.
ensure
to
the
autonomous
Though
that
physician’s
a
decision
states
woman’s
professional
may
choice
about
surely
is
what
enact
informed
and
thoughtful when she elects to have an abortion, states cannot so
compromise
physicians’
free
speech
rights,
professional
judgment, patient autonomy, and other important state interests
in the process. The means here exceed what is proper to promote
the
undeniably
profound
and
important
35
purpose
of
protecting
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fetal
life.
Filed: 12/22/2014
See,
Pg: 36 of 37
e.g.,
131
Sorrel,
S.
Ct.
at
2667-68,
2670
(holding that Vermont statute unconstitutionally burdened speech
because “[w]hile Vermont’s stated policy goals may be proper,
§ 4631(d)
does
not
advance
them
in
a
permissible
way”
under
intermediate scrutiny).
IV.
“The right to speak and the right to refrain from speaking
are
complementary
components
of
the
broader
concept
of
‘individual freedom of mind.’” Wooley v. Maynard, 430 U.S. 705,
714 (1977) (quoting W. Va. State Bd. of Educ. v. Barnette, 319
U.S.
624,
637
(1943)).
Regulations
which
compel
ideological
speech “pose the inherent risk that the Government seeks not to
advance a legitimate regulatory goal, but to suppress unpopular
ideas or information or manipulate the public debate through
coercion rather than persuasion.” Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 641 (1994). Abortion may well be a special
case because of the undeniable gravity of all that is involved,
but it cannot be so special a case that all other professional
rights and medical norms go out the window. While the state
itself
may
promote
through
various
means
childbirth
over
abortion, it may not coerce doctors into voicing that message on
behalf
of
the
state
in
the
particular
manner
and
setting
attempted here. The district court did not err in concluding
that § 90-21.85 of the North Carolina General Statutes violates
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the First Amendment and in enjoining the enforcement of that
provision. Its judgment is in all respects affirmed.
AFFIRMED
37
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