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Oral Arguments on N.C. Abortion Ultrasound Law at 4th Cir.

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By Mark Wilson, Esq. on October 30, 2014 3:45 PM

The Fourth Circuit Court of Appeals heard oral arguments in a case about a controversial North Carolina abortion law yesterday. The Woman's Right to Know Act requires a doctor providing an abortion to give the patient an ultrasound at least four hours before an abortion and requires the doctor to show the woman the fetus on the ultrasound display and describe the fetus. The woman doesn't have to watch or listen, but the doctor is required to go through with the charade even if she doesn't.

A First Amendment Issue, Not a Licensing Issue

In January, a federal district judge found the law unconstitutional as an impermissible exercise of state power "to compel a health care provider to speak, in his or her own voice, the state's ideological message in favor of carrying a pregnancy to term." While the state claimed that its requirements are permitted by Planned Parenthood v. Casey, which allows a state to provide truthful, non-misleading, and relevant information about an abortion, the district court wasn't buying it.

The court found that the state was compelling medical professionals "to deliver the state's content-based, non-medical message," noting that North Carolina acknowledged that discouraging a woman from having an abortion was one of the purposes of the Act. The court also declined to allow the legislature to compel speech on a medical issue, finding that the state was compelling speech outside the boundaries of "prevailing medical practice."

Appellants -- here, officials from North Carolina -- argued in briefs to the Fourth Circuit that the statute shouldn't have been looked at under the First Amendment and heightened scrutiny. Rather, they claim, the law was a legitimate exercise of the state's power to regulate medical professionals and should be analyzed under rational basis review.

This Doesn't Just Affect North Carolina

North Carolina isn't alone; as with other abortion laws, like admitting privilege requirements, mandatory ultrasounds are The New Hotness. According to the Guttmacher Institute, 12 states require physicians to perform ultrasounds on women seeking abortions. Virginia passed its own mandatory ultrasound law in 2012, to much controversy nationwide. In February of this year, the newly Democratic Virginia Senate voted to repeal the law, even though the repeal wasn't expected to make it through the Republican House of Delegates.

As the U.S. Supreme Court takes up the issue of those admitting privilege laws, expect to see mandatory ultrasounds next on the horizon -- particularly because of its intersection with reproductive rights and the First Amendment.

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