Here’s some good news for pro-choice activists: the Fourth U.S. Circuit Court of Appeals has upheld a district judge’s decision that an expansive North Carolina anti-abortion law is unconstitutional.
Even as draconian Republican anti-abortion laws go, this one was a doozy. It required women to receive a medically unnecessary ultrasound, most of which would be performed on women in the first 12 weeks of pregnancy and thus require a vaginally penetrative procedure. According to USA Today, the law then required abortion providers to “place an ultrasound image next to a pregnant woman so she can view it, describe its features, and offer the patient the chance to listen to the heartbeat. The law required abortion providers to describe the dimensions of the embryo or fetus and the presence of external members and internal organs if they were present and viewable.” While patients were allowed to cover their eyes and ears, the message still had to be read.
In other words, Republicans really did want to force their way into women’s vagina while waving a picture of a fetus and suggesting only hell-bound whores murder the unborn.
After the GOP-backed was passed in 2011, it survived a veto by Democratic Gov. Beverly Purdue. But the legislation was never enforced thanks to court challenges by a civil-liberties coalition including the ACLU and reproductive rights advocates.
Hopefully, now it never will be. Even Reagan-appointed Judge J. Harvie Wilkinson concluded that forcing abortion-seeking patients to hear an ideologically anti-abortion message from state legislators in the doctor’s office was way over the top. In the unanimous decision, he wrote:
“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.”
Later, Wilkinson added:
“Far from promoting the psychological health of women, this requirement risks the infliction of psychological harm on the woman who chooses not to receive this 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. 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.”
Wilkinson added that whatever “gravity” people may assign to the abortion debates, it is not somehow magically so “special” that “all other professional rights and medical norms go out the window.”
He tore the medical-necessity argument to shreds and called it what it was: an attempt by Republicans to insert themselves between women and their doctors and a serious violation of the First Amendment. Center for Reproductive Rights U.S. legal V.P. Bebe Anderson told MSNBC that “The court has looked beyond the sham pretense of this law.”
On the right, anti-abortion campaigners were melting down. North Carolina Right to Life president Barbara Holt told Reuters, “We have a right that trumps free speech, and that’s our unalienable right to life.”
Unfortunately for nutty Republicans, the laws probably wouldn’t have even prevented many terminations. A comprehensive study released at the beginning of 2014 in Obstetrics and Gynecology found that 98.4% of 16,000 women given the option of viewing ultrasound images of their fetus beforehand still went along with their abortion. Among those women who were already confident in their decision, zero percent changed their minds. Basically, the laws were able to convinced a paltry minority of on-the-fence women to terminate their pregnancy and subjected the rest to an elaborate shaming ritual.
The case may now go to the Supreme Court, where the free-speech-doesn’t-matter-because-abortion argument could be put to the final test.