A federal appeals court has ruled that a North Carolina law forcing women to undergo transvaginal ultrasound probes and view images of fetuses is unconstitutional.
The 4th Circuit Court of Appeals has just ruled that a 2011 North Carolina law mandating doctors performing abortions first perform invasive transvaginal ultrasound probes, deliver specific messages, and show specific images is unconstitutional.
Reagan-appointed Judge J. Harvie Wilkinson III declared that forcing doctors to describe in detail images of a fetus that a woman is asking to be aborted was “compelled speech” that is ideological and not medical in nature, and thus unconstitutional. The focus of the ruling was on the doctor’s free speech rights and a woman’s right to not be forced to listen, more than the invasive transvaginal probe itself.
“This compelled speech, even though it is a regulation of the medical profession, is ideological in intent and in kind,” Judge Wilkinson wrote, striking down the “Women’s Right to Know Act” that had been vetoed by the governor but overridden by lawmakers.
“The means used by North Carolina extend well beyond those states have customarily employed to effectuate their undeniable interests in ensuring informed consent and in protecting the sanctity of life in all its phases,” Wilkinson’s ruling states. “We thus affirm the district court’s holding that this compelled speech provision violates the First Amendment.”Â
“While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here.”
The law, Judge Wilkinson notes, “finds the patient half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina.”
“Informed consent has not generally been thought to require a patient to view images from his or her own body,” he continues, “much less in a setting in which personal judgment may be altered or impaired…Rather than engaging in a conversation calculated to inform, the physician must continue talking regardless of whether the patient is listening…The information is provided irrespective of the needs or wants of the patient, in direct contravention of medical ethics and the principle of patient autonomy. …And it is intended to convey not the risks and benefits of the medical procedure to the patient’s own health, but rather the full weight of the state’s moral condemnation. Though the state is plainly free to express such a preference for childbirth to women, it is not the function of informed consent to require a physician to deliver the state’s preference in a setting this fraught with stress and anxiety.”
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