E-Alert Case Updates
Fourth Circuit Affirms Grant of Summary Judgment for Physician-Plaintiffs and Holds That North Carolina Display of Real-Time View Requirement Violates First Amendment
Gretchen Stuart v. Paul Camnitz
At issue before the United States Court of Appeals for the Fourth Circuit in Gretchen Stuart v. Paul Camnitz, was a North Carolina statute that required physicians to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions. According to the statute, a physician must display and describe the image during the ultrasound, even if the woman actively “avert[s] her eyes” and “refus[es] to hear.” N.C. Gen. Stat. § 90-21.85(b). Upon review, the Fourth Circuit determined that this compelled speech, even though it was a regulation of the medical profession, was ideological in intent and in kind. Further, in a published opinion, the appellate court opined that the means used by North Carolina extended 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. Thus, the Fourth Circuit affirmed the district court’s holding that this compelled speech provision violated the First Amendment.
In July 2011, the North Carolina General Assembly passed the Woman’s Right to Know Act over a gubernatorial veto. The Act amended Chapter 90 of the North Carolina General Statutes, which governs medical and related professions, adding a new article regulating the steps that must precede an abortion. Physicians and abortion providers filed suit after the Act’s passage but before its effective date, asking the court to enjoin enforcement of the Act and declare it unconstitutional. In October 2011, the district court issued a preliminary injunction barring enforcement of one (1) provision of the Act, the Display of Real-Time View Requirement (“the Requirement”), codified at N.C. Gen. Stat. § 90-21.85. J.A. 143-44. The district court subsequently allowed the plaintiffs to amend their complaint, which asserted that the Display of Real-Time View Requirement violated the physicians’ First Amendment free speech rights and the physicians’ and the patients’ Fourteenth Amendment due process rights.
The Display of Real-Time View Requirement obligates doctors (or technicians) to perform an ultrasound on any woman seeking an abortion at least four (4) but not more than seventy-two (72) hours before the abortion is to take place. N.C. Gen. Stat. § 90-21.85(a)(1). The physician must display the sonogram so that the woman can see it, id. § 90-21.85(a)(3), and describe the fetus in detail, “includ[ing] the presence, location, and dimensions of the unborn child within the uterus and the number of unborn children depicted,” id. § 90-21.85(a)(2), as well as “the presence of external members and internal organs, if present and viewable,” id. § 90-21.85(a)(4). The physician also must offer the woman the opportunity to hear the fetal heart tone. Id. § 90-21.85(a)(2). The woman, however, may “avert her eyes from the displayed images” and “refus[e] to hear the simultaneous explanation and medical description,” (presumably) by covering her eyes and ears. Id. § 90-21.85(b). The Act provides an exception to these requirements only in cases of medical emergency. Id. § 90-21.86. Physicians who violate the Act are liable for damages and may be enjoined from providing further abortions that violate the Act in North Carolina, which may result in the loss of the doctor’s medical license. See id. § 90-14(a)(2) (The North Carolina Medical Board may impose disciplinary measures, including license revocation, upon a doctor who “[p]roduc[es] or attempt[s] to produce an abortion contrary to law.”).
Both parties moved for summary judgment. Applying heightened, intermediate scrutiny, Stuart v. Loomis, 992 F. Supp. 2d 585, 600-01 (M.D.N.C. 2014), the district court held that the Display of Real-Time View Requirement violated the physicians’ First Amendment rights to free speech, and granted the plaintiffs’ motion for summary judgment and entered a permanent injunction. The court declined to reach the merits of the due process claim, finding it moot in light of the court’s ruling on the First Amendment claim. The State appealed timely to the Fourth Circuit.
On appeal, the Fourth Circuit reviewed the district court’s grant of summary judgment de novo. In so doing, the appellate court viewed the facts in the light most favorable to the State. Moore-King v. Cnty. of Chesterfield, Va., 708 F.3d 560, 566 (4th Cir. 2013). First, the appellate court examined the type of regulation at issue to determine the requisite level of scrutiny to apply. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637 (1994) (explaining that “because not every interference with speech triggers the same degree of scrutiny under the First Amendment, we must decide at the outset the level of scrutiny applicable”). In so doing, the Court explained that it was mindful of “the First Amendment’s command that government regulation of speech must be measured in minimums, not maximums.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 790 (1988). The Fourth Circuit agreed with the district court that the regulation was a content-based regulation of a medical professional’s speech which must satisfy at least intermediate scrutiny to survive.
According to the appellate court, the regulation was quintessential compelled speech, because it forced physicians to say things they otherwise would not say. Moreover, the Court found that the statement compelled by the regulation was ideological because it conveyed a particular opinion. Further, the Court recognized that the State freely admitted that the purpose and anticipated effect of the Display of Real-Time View Requirement was to convince women seeking abortions to change their minds or reassess their decisions. Although the Court declined to go so far as to say that every required description of a typical fetus was ideological in every context, it determined that the Display of Real-Time View Requirement explicitly promoted a pro-life message by demanding the provision of facts that all fell on one (1) side of the abortion debate—and did so shortly before the time of decision when the intended recipient is most vulnerable.
The Court reasoned that when the First Amendment rights of a professional are at stake, the stringency of review thus slides “along a continuum” from “public dialogue” on one end to “regulation of professional conduct” on the other. Pickup v. Brown, 740 F.3d 1208, 1227, 1229 (9th Cir. 2013). Other circuits have relied on the distinction between professional speech and professional conduct when deciding on the appropriate level of scrutiny to apply to regulations of the medical profession. See King, 767 F.3d at 224-29, 233-37; Wollschlaeger v. Gov. of Fla., 760 F.3d 1195, 1217-25 (11th Cir. 2014). After reviewing the constitutional law precedent, the appellate court determined that the Display of Real-Time View Requirement resided somewhere in the middle of that sliding scale, because it was a regulation of medical treatment insofar as it directed doctors to do certain things in the context of treating a patient.
The Fourth Circuit also articulated that under an intermediate standard of scrutiny, the State bears the burden of demonstrating “at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest.” Sorrel v. IMS Health Inc., 131 S. Ct. 2653, 2667-68 (2011). According to the Court, the protection of fetal life, along with the companion interests of protecting the pregnant woman’s psychological health and ensuring that “so grave a choice is well informed,” is undeniably an important state interest. See Roe v. Wade, 410 U.S. 113, 162 (1973); Gonzales v. Carhart, 550 U.S. 124, 145 (2007).
Under the facts of the appeal, the Fourth Circuit presumed that the statute protected fetal life by increasing the likelihood that a woman would not follow through on the decision to have an abortion. Nonetheless, the appellate court opined that the means used to promote a substantial state interest must be drawn so as to directly advance the interest without impeding too greatly on individual liberty interests or competing state concerns. Sorrel, 131 S. Ct. at 2667-68. Under the facts of the case, the Fourth Circuit concluded that the means employed by the State were far-reaching—almost unprecedentedly so—in a number of respects, and far outstripped the provision at issue in Casey. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 881 (1992). Specifically, according to the Court, the statutory provision interfered with the physician’s right to free speech beyond the extent permitted for reasonable regulation of the medical profession, while simultaneously threatening harm to the patient’s psychological health, interfering with the physician’s professional judgment, and compromising the doctor-patient relationship. For these reasons, the Fourth Circuit held that the Display of Real-Time View Requirement was unconstitutional, and enjoined the enforcement of that provision.
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