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Supreme Court Won't Review Invasive N.C. Abortion Ultrasound Law

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By Casey C. Sullivan, Esq. on June 16, 2015 1:13 PM

Women seeking to end their pregnancies in North Carolina won't be forced to undergo a state-mandated ultra sound and scripted description of the fetus after the Supreme Court rejected the state's petition for cert Monday. Under the North Carolina law, doctors were required to conduct an ultrasound, describe the characteristics of the fetus, and recite a script before performing an abortion.

The Fourth Circuit invalidated that law in late December, 2014, finding it to be a violation of a woman's right to an abortion and her physician's free speech rights. The Supreme Court's refusal to hear the case means that Fourth Circuit's opinion stands.

No Resolution to the Ultrasound Circuit Split

The Fourth Circuit's ruling invalidating the law took direct issue with the Fifth and Eighth Circuits' decisions upholding similar laws. It specifically repudiates those Circuits' interpretation of Planned Parenthood v. Casey, the leading Supreme Court precedent on abortion. The Fifth and Eighth's reliance on one paragraph in Casey to support "display and describe" laws similar to North Carolina's is misplaced, the Fourth argued, misinterprets a limited ruling on a specific issue as a broad finding that restrictions on physician speech aren't held to enhanced scrutiny.

Further, the Fourth had found that the requirements of the law went well beyond regulating the medical profession, as the state is allowed to do. Instead, the state was forcing doctors to recite its own views on abortion, just as women were at their most vulnerable: naked on the exam table, being probed by her doctor. The Supreme Court's decision not to hear the case means the split between the Circuits won't be resolved for the time being.

Just A Matter of Time?

The High Court may not be able to avoid the issue for too long, however. The Fifth Circuit, in a follow up to the opinion the Fourth took issue with in its ruling, recently upheld Texas's unprecedented abortion restrictions. Those restrictions, which Texas characterized as allowable medical regulations, required abortion providers to have admitting privileges and clinics to meet surgical center standards. Under the ruling, all but seven Texas abortion providers are expected to close their doors.

Given the drastic nature of those restrictions, it is likely that the Texas case will be taken up, even if the North Carolina one wasn't. Scalia dissented from the denial of cert in this case, while Breyer, Ginsburg, Kagan and Sotomayor indicated earlier that they would review the Texas case. That means at least five justices want to take up the question of what sort of regulations on doctors are permissible under the First and Fourteenth Amendment.

The question isn't when the issue will come up, but which case will be the best vehicle for it. What North Carolina wasn't, Texas might be.

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