We'd be shocked if abortion doesn't come before the Supreme Court next term, but it won't come in the form of North Carolina's invasive abortion ultrasound law. The High Court denied review of the Fourth Circuit's ruling invalidating the law, which required women to undergo a state-mandated ultrasound and scripted description of the fetus.
In not taking up the case, the Court leaves in place a broad split between the Fourth Circuit and the Fifth and Eighth, which have upheld similar "display and describe" laws. Is this a hint of things to come?
A Question of Physicians' Free Speech Rights
North Carolina's law required doctors to conduct an ultrasound prior to performing an abortion, describe the fetus in detail, including its dimensions, the presence of external members and internal organs. The speech was required, even if the woman averted her eyes or plugged her ears. After abortion providers challenged it, the Fourth Circuit struck it down as a violation of physician's free speech rights and an undue burden on a woman's right to obtain an abortion. Only the free speech question was at issue in the state's petition for cert.
In taking out the law, the Fourth Circuit's decision took direct aim at the reasoning behind Fifth and Eighth Circuit rulings upholding mandated ultrasounds and physician disclosures. Both of those circuits based their cases on Planned Parenthood v. Casey, the leading abortion precedent, where the Supreme Court upheld Pennsylvania's requirement that physicians provide information about the risks of abortion and childbirth.
Unlike the Fifth and Eighth, the Fourth interpreted Casey not as allowing all mandated speech as a simple professional regulation, but as creating only a limited ruling on that specific requirement. Further, the Fourth said, any compelled speech must be reviewed under an intermediate scrutiny standard, while the other circuits had applied only rational basis review.
Not When but How
Of course, the Court does not usually provide an explanation for a denial of cert. It would be reading too much into the denial to take it as an indication of how the Court will eventually rule on the speech or ultrasound issue -- after all, had enough Justices wanted to give the Fourth Circuit their stamp of approval, they would have taken the case. Rather, the denial of cert is more likely about finding the right vehicle to make an eventual ruling.
The Fifth Circuit may give the Court that opportunity with its recent decision upholding Texas's strict restrictions on abortion providers. Those requirements, which are expected to close most of the state's abortion clinics, were justified as legitimate professional regulations, just as North Carolina had claimed its ultrasound requirements were.
Texas might give both the Court's liberal and conservative wings just the issues they want. For the anti-abortion Justices, the breadth of Texas's restrictions would mean a ruling upholding that sort of legislation could highly curtail abortion access if adopted by other states, without having to take on Roe v. Wade directly.
For the liberal Justices, the very drastic effects of Texas's law could make it easier to strike down. Those Justices, Breyer, Ginsburg, Kagan and Sotomayor, have already indicated that the would like to review the constitutionality of the law, sooner rather than later.