Gretchen Stuart v. Paul Camnitz
2014 U.S. App. LEXIS 24144
| 4th Cir. | 2014Background
- North Carolina enacted the Woman’s Right to Know Act requiring an ultrasound 4–72 hours before an abortion, mandatory display of the sonogram to the patient, a simultaneous verbal description of the fetus (presence, location, dimensions, external and internal anatomy), and an offer to let the patient hear fetal heart tones; the patient may avert her eyes or refuse to hear but the physician must still speak and display.
- Physicians and clinics sued pre-enforcement asserting First Amendment compelled-speech claims and Fourteenth Amendment due process claims; the district court granted summary judgment for plaintiffs enjoining enforcement of the Display of Real-Time View Requirement (N.C. Gen. Stat. § 90-21.85).
- The state argued the provision regulated the medical profession and was a permissible informed-consent regulation subject only to rational-basis review; plaintiffs argued it compelled ideological speech and required heightened scrutiny.
- The Fourth Circuit treated the law as a content-based compelled-speech regulation that intersects professional regulation and applied an intermediate (heightened) scrutiny standard.
- Applying intermediate scrutiny, the court held the statute did not directly advance the State’s interests in a manner closely drawn to those interests because it (a) compelled speech to non-listening/captive listeners, (b) transformed physicians into mouthpieces of the State, (c) lacked a therapeutic-privilege exception, and (d) intruded on doctor–patient trust and patient autonomy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ultrasound display-and-description requirement is protected speech or mere regulation of medical practice | The Requirement compels ideological speech and is content-based, so it triggers at least heightened scrutiny | The Requirement is a regulation of medical practice and informed consent, thus subject to rational-basis review | The Requirement is compelled, content-based speech by physicians and triggers heightened (intermediate) scrutiny |
| Appropriate level of scrutiny to apply to compelled professional speech | Strict scrutiny given ideological compulsion; at minimum heightened scrutiny | Rational-basis because state licensing/regulation of medicine allows such rules | Court applied intermediate heightened scrutiny (commercial-speech-like test) |
| Whether the statute directly advances substantial state interests (protecting fetal life, ensuring informed consent, protecting women’s psychological health, integrity of profession) | State interests are important; the statute increases informed decision-making and furthers protection of fetal life | Requirement is a reasonable informed-consent regulation that advances State interests | Statute fails intermediate scrutiny: means do not directly advance interests proportionally (speech compelled to unwilling/captive listeners; no therapeutic exception; undermines doctor–patient relationship) |
| Whether Casey and Gonzales foreclose First Amendment challenge to such compelled disclosures | Plaintiffs: Casey does not broadly eliminate First Amendment protections for professional speech; Gonzales is not a free-speech decision | State: Casey endorses reasonable regulation of physician speech in abortion context; Gonzales approves robust state regulation of medicine | Court rejected reading that Casey/Gonzales automatically allow such compelled speech; Casey’s passage was narrow and Gonzales didn’t resolve First Amendment issue |
Key Cases Cited
- Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) (private speakers may choose what to say and what to omit; government cannot compel ideological speech)
- Wooley v. Maynard, 430 U.S. 705 (1977) (First Amendment includes right to refrain from speaking)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (upholding certain informed-consent requirements but did not eliminate physician First Amendment protections)
- Gonzales v. Carhart, 550 U.S. 124 (2007) (recognized State’s significant role in regulating the medical profession; not a First Amendment decision)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (intermediate scrutiny standard requires that regulation directly advance a substantial governmental interest and be narrowly drawn)
- Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (content-based regulations are presumptively invalid and generally receive exacting scrutiny)
- Texas v. Johnson, 491 U.S. 397 (1989) (First Amendment protection for expressive conduct; inquiry whether intent to convey particularized message and likelihood it would be understood)