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4th Cir. Strikes N.C. 'Informed Consent' Abortion Script for Doctors

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By Mark Wilson, Esq. on December 23, 2014 2:20 PM

On Monday, the Fourth Circuit Court of Appeals became the first federal appellate court to overturn a state's "informed consent" law for abortions. These laws require physicians to recite a state-mandated script before performing an abortion.

In the case of North Carolina, physicians were required to conduct an ultrasound, point out to the patient the fetus and any visible body parts, and advise the patient on alternatives to abortion. All of this, said the Fourth Circuit in stark, uncompromising language, went way too far.

That's Not Quite Informed Consent

The unanimous opinion of the three-judge panel (written by a Republican appointee, no less) was aimed squarely at the Fifth and Eighth Circuits, the two other circuits that upheld similar laws in Texas and Minnesota. The panel called out the other circuits' opinions and then explicitly disagreed with them. In this case, the court refused to buy North Carolina's contention that it was merely regulating the profession, which it's allowed to do.

Rather than informing and assisting (which are the purposes of informed consent), the court found North Carolina's law was a transparent attempt to force a physician to recite the state's own opinion on abortion in his or her own voice. Even more gratuitously, the state mandated that this propaganda be disseminated only when a patient was at her most vulnerable, "half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina."

Needless to say, the court pointed out, this isn't generally when doctor and patient have a chat about the pros and cons of a medical procedure.

A Bridge Too Far

The court also took a shot across the bow of the Supreme Court as well, distinguishing Casey v. Planned Parenthood and Gonzales v. Carhart, the seminal and controlling abortion rights cases. The Fifth and Eighth Circuits placed a great deal of emphasis on a single paragraph in Casey to support the proposition that states can require physicians to say or do basically whatever the states want, as long as the information is truthful.

That's all well and good, the court said here, but the "ultrasound display-and-describe" goes well beyond the boundaries of requiring physicians to provide truthful information. Instead, the state "commandeer[s] the doctor-patient relationship to compel a physician to express its preference to the patient." This requirement vitiates the trust that must exist between doctor and patient, "replacing what the doctor's medical judgment would counsel in a communication with what the state wishes told."

Your Move, Supreme Court

The Fourth Circuit's opinion -- if upheld in the inevitable en banc rehearing -- opens the door to a circuit split on a swath of issues. First of all, what's the level of constitutional scrutiny for state laws compelling doctors to recite a script disfavoring abortion? The Fourth applied intermediate scrutiny, while the Fifth and Eighth applied only rational basis review. And what of Carhart and Casey? Do they really stand for the proposition that the state can require a doctor to say absolutely anything, so long as it's truthful?

We'll have to wait for the sequel.

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