Gretchen Stuart v. Paul CamnitzGretchen Stuart v. Paul Camnitz
Case Information
*2 Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Chief Judge Traxler and Judge Duncan joined.
ARGUED : John Foster Maddrey, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Julie Rikelman, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York, for Appellees. ON BRIEF : Roy Cooper, Attorney General, Gary R. Govert, Assistant Solicitor General, I. Faison Hicks, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Christopher Brook, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina; Andrew D. Beck, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Jennifer Sokoler, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York; Walter Dellinger, Anton Metlitsky, Leah Godesky, O'MELVENY & MYERS LLP, Washington, D.C.; Diana O. Salgado, New York, New York, Helene T. Krasnoff, PLANNED PARENTHOOD FED. OF AMERICA, Washington, D.C., for Appellees. Anna R. Franzonello, Mailee R. Smith, William L. Saunders, Denise M. Burke, AMERICANS UNITED FOR LIFE, Washington, D.C., for Amici Francis J. Beckwith, MJS, PhD, Gerard V. Bradley, Teresa S. Collett, David K. Dewolf, Rick Duncan, Edward M. Gaffney, Stephen Gilles, Michael Stokes Paulsen, Ronald J. Rychlak, and Richard Stith. Scott W. Gaylord, Jennings Professor, Thomas J. Molony, Associate Professor of Law, ELON UNIVERSITY SCHOOL OF LAW, Greensboro, North Carolina, for Amici Ruth Samuelson, Pat McElraft, Pat Hurley, Marilyn Avila, Susan Martin, Carolyn M. Justice, Rena W. Turner, Michele D. Presnell, Sarah Stevens, Jacqueline Michelle Schaffer, Debra Conrad, Mark Brody, Chris Whitmire, Allen McNeill, Donny Lambeth, George Cleveland, Linda Johnson, David Curtis, Joyce Krawiec, Shirley Randlemen, Dan Soucek, Norman Sanderson, Warren Daniel, Buck Newton, Kathy L. Harrington, and Andrew Brock. Kimberly A. Parker, Alathea E. Porter, Thaila K. Sundaresan, Tiffany E. Payne, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Amici American College of Obstetricians and Gynecologists and American Medical Association. Shannon Rose Selden, Courtney M. Dankworth, DEBEVOISE & PLIMPTON LLP, New York, New York, for Amicus American Public Health Association.
WILKINSON, Circuit Judge:
At issue here is a North Carolina statute that requires
physicians to perform an ultrasound, display the sonogram, and
describe the fetus to women seeking abortions. 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.”
I.
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
*5
injunction barring enforcement of one provision of the Act, the
Display of Real-Time View Requirement (“the Requirement”),
codified at
The Display of Real-Time View Requirement obligates doctors
(or technicians) to perform an ultrasound on any woman seeking
an abortion at least four but not more than seventy-two hours
before the abortion is to take place.
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. Id. § 90-21.88. Violation of the Act also 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.”).
Not at issue in this appeal are several other informed consent provisions to which physicians, independently of the Display of Real-Time View Requirement, are subject. The first is the informed consent provision of the Act itself. Id. § 90- 21.82. It requires that, at least twenty-four hours before an abortion is to be performed, a doctor or qualified professional explain to the woman seeking the abortion the risks of the procedure, the risks of carrying the child to term, “and any adverse psychological effects associated with the abortion.” Id. *7 § 90-21.82(1)(b), (d). The physician must also convey the “probable gestational age of the unborn child,” id. § 90- 21.82(1)(c), that financial assistance for the pregnancy may be available, that the father of the child is obligated to pay child support, and that there are alternatives to abortion, id. § 90-21.82(2)(a)-(d). Furthermore, the doctor must inform the woman that she can view on a state-sponsored website materials published by the state which describe the fetus. The doctor must also give or mail the woman physical copies of the materials if she wishes, and must “list agencies that offer alternatives to abortion.” Id. § 90-21.82(2)(e).
Before this Act, physicians were still subject to North Carolina’s general informed consent requirements when conducting abortions. See id. § 90-21.13(a); 10A N.C. Admin. Code 14E.0305(a); Appellees’ Br. 6. Prior to its enactment, the physicians challenging the Act claim they were “inform[ing] each patient about the nature of the abortion procedure, its risks and benefits, and the alternatives available to the patient and their respective risks and benefits” and “counsel[ing] the patient to ensure that she was certain about her decision to have an abortion.” Appellees’ Br. 6.
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 *8 that the Display of Real-Time View Requirement violated the physicians’ First Amendment rights to free speech. Id. at 607- 09. It thus granted the plaintiffs’ motion for summary judgment and entered a permanent injunction. Id. at 610-11. 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. Id. at 611. [2]
We review a grant of summary judgment de novo. S.
Appalachian Mountain Stewards v. A & G Coal Corp.,
II.
A.
“Congress shall make no law . . . abridging the freedom of
speech.”
We thus must first examine the type of regulation at issue
to determine the requisite level of scrutiny to apply. Turner,
The physicians urge us to find that the regulation must receive strict scrutiny because it is content-based and ideological. See Appellees’ Br. 36-40. The state counters that *10 the Requirement must be treated as a regulation of the medical profession in the context of abortion and thus subject only to rational basis review. See Appellants’ Br. 7-15, 20-28. The district court chose a different path. Recognizing that the Requirement both compelled speech and regulated the medical profession, the court applied neither strict scrutiny nor rational basis review, but rather the intermediate scrutiny standard normally used for certain commercial speech regulations. See Stuart v. Loomis, 992 F. Supp. 2d 585, 598-601 (M.D.N.C. 2014). For the reasons outlined below, we agree with the district court that the Requirement is a content-based regulation of a medical professional’s speech which must satisfy at least intermediate scrutiny to survive.
B.
The Display of Real-Time View Requirement regulates both
speech and conduct. The physician must convey the descriptions
mandated by the statute in his or her own voice. The sonogram
display is also intimately connected with the describing
requirement. The two are thus best viewed as a single whole. In
deciding whether an activity “possesses sufficient communicative
elements to bring the First Amendment into play, we have asked
whether ‘[a]n intent to convey a particularized message was
present, and [whether] the likelihood was great that the message
would be understood by those who viewed it.’” Texas v. Johnson,
*11
The First Amendment not only protects against prohibitions
of speech, but also against regulations that compel speech.
“Since all speech inherently involves choices of what to say and
what to leave unsaid, one important manifestation of the
principle of free speech is that one who chooses to speak may
*12
also decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Grp. of Bos., 515 U.S. 557, 573 (1995) (citations
omitted) (internal quotation marks omitted); see also Wooley v.
Maynard, 430 U.S. 705, 714 (1977) (“[T]he First Amendment . . .
includes both the right to speak freely and the right to refrain
from speaking at all.”). A regulation compelling speech is by
its very nature content-based, because it requires the speaker
to change the content of his speech or even to say something
where he would otherwise be silent. Riley, 487 U.S. at 795
(“Mandating speech that a speaker would not otherwise make
necessarily alters the content of the speech.”); Centro Tepeyac
v. Montgomery Cnty.,
The Requirement is quintessential compelled speech. It forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion. The state freely admits that the purpose and anticipated effect of the Display of Real-Time View Requirement is to convince women seeking abortions to change *13 their minds or reassess their decisions. See Appellants’ Br. 29- 32.
It may be true, as the Fifth Circuit has noted, that “the
required disclosures . . . are the epitome of truthful, non-
misleading information.” Tex. Med. Providers Performing Abortion
Servs. v. Lakey, 667 F.3d 570, 577-78 (5th Cir. 2012). But an
individual’s “right to tailor [his] speech” or to not speak at
all “applies . . . equally to statements of fact the speaker
would rather avoid.” Hurley,
The state protests that the Requirement does not dictate a specific script and that the doctor is free to supplement the *14 information with his own opinion about abortion. Reply Br. 14- 16. That is true; the state does not demand that the doctor use particular words. But that does not mean that the Requirement is “not designed to favor or disadvantage speech of any particular content.” Turner, 512 U.S. at 652. In fact, the clear and conceded purpose of the Requirement is to support the state’s pro-life position. That the doctor may supplement the compelled speech with his own perspective does not cure the coercion -- the government’s message still must be delivered (though not necessarily received).
Content-based regulations of speech typically receive strict scrutiny. Id. at 642. The state, however, maintains that the Requirement is merely a regulation of the practice of medicine that need only satisfy rational basis review. We turn now to that contention. [3]
C.
The state’s power to prescribe rules and regulations for
professions, including medicine, has an extensive history. See
*15
Dent v. West Virginia, 129 U.S. 114, 122 (1889) (“[I]t has been
the practice of different states, from time immemorial, to exact
in many pursuits a certain degree of skill and learning upon
which the community may confidently rely.”). Licensing and
regulation by the state “provide clients with the confidence
they require to put their health or their livelihood in the
hands of those who utilize knowledge and methods with which the
clients ordinarily have little or no familiarity.” King v. Gov.
of N.J., 767 F.3d 216, 232 (3d Cir. 2014). The state may
establish licensing qualifications, Dent, 129 U.S. at 122,
oblige the payment of dues to a professional organization for
purposes such as “disciplining members” and “proposing ethical
codes,” Keller, 496 U.S. at 16, and even set standards for the
conduct of professional activities, Barsky v. Bd. of Regents of
Univ. of State of N.Y., 347 U.S. 442, 449-50 (1954). In the
medical context, the state may require the provision of
information sufficient for patients to give their informed
consent to medical procedures, see Canterbury v. Spence, 464
F.2d 772, 781 (D.C. Cir. 1972), and patients may seek damages
when doctors fail to follow statutory and professionally
recognized norms, see, e.g,
But that does not mean that individuals simply abandon
their First Amendment rights when they commence practicing a
profession. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 884 (1992) (plurality opinion) (“[T]he physician’s First
Amendment rights not to speak are implicated.” (emphasis
added)); Lowe,
When the First Amendment rights of a professional are at
stake, the stringency of review thus slides “along a continuum”
*17
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) (emphasis in original). Other circuits have
recently 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.,
The Display of Real-Time View Requirement resides somewhere
in the middle on that sliding scale. It is a regulation of
medical treatment insofar as it directs doctors to do certain
things in the context of treating a patient. In that sense, the
government can lay claim to its stronger interest in the
regulation of professional conduct. But that is hardly the end
of the matter. The government’s regulatory interest is less
potent in the context of a self-regulating profession like
medicine. Moore-King v. Cnty. of Chesterfield, Va., 708 F.3d
560, 570 (4th Cir. 2013). Moreover, the Requirement is a clearly
content-based regulation of speech; it requires doctors to “say”
as well as “do.” As the district court found, the confluence of
these factors points toward borrowing a heightened intermediate
scrutiny standard used in certain commercial speech cases.
Stuart, 992 F. Supp. 2d at 600. Thus, we need not conclusively
determine whether strict scrutiny ever applies in similar
*18
situations, because in this case “the outcome is the same
whether a special commercial speech inquiry or a stricter form
of judicial scrutiny is applied.” Sorrel,
D.
Insofar as our decision on the applicable standard of review differs from the positions taken by the Fifth and Eighth Circuits in cases examining the constitutionality of abortion regulations under the First Amendment, we respectfully disagree. Both courts relied heavily on a single paragraph in Casey:
All that is left of petitioners' argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician's First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430 U.S. 705 (1977), but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State, cf. Whalen v. Roe, 429 U.S. 589, 603 (1977). We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.
505 U.S. at 884; see also Lakey, 667 F.3d at 574-76; Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889, 893 (8th Cir. 2012) (en banc) (“Rounds II”); Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 733-35 (8th Cir. 2008) (en banc) (“Rounds I”). That is the sum of the First Amendment analysis in Casey.
In
considering
an
ultrasound
display-and-describe
requirement similar to the one at issue here, the Fifth Circuit
*19
interpreted Casey as employing “the antithesis of strict
scrutiny.” Lakey, 667 F.3d at 575. It further noted that in
Gonzales v. Carhart, the Supreme Court “upheld a state’s
‘significant role . . . in regulating the medical profession.’”
Lakey,
With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here. The plurality opinion stated that the medical profession is “subject to reasonable licensing and regulation by the State” and that *20 physicians’ speech is “part of the practice of medicine.” Casey, 505 U.S. at 884. But the plurality did not hold sweepingly that all regulation of speech in the medical context merely receives rational basis review. Rather, having noted the physicians’ First Amendment rights and the state’s countervailing interest in regulating the medical profession, the plurality simply stated that it saw “no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.” Id. (emphasis added). That particularized finding hardly announces a guiding standard of scrutiny for use in every subsequent compelled speech case involving abortion.
Furthermore, the Fifth and Eighth Circuits’ reliance on Gonzales seems inapposite. Gonzales was not a First Amendment case; the plaintiffs there did not bring free speech claims. See Carhart v. Ashcroft, 331 F. Supp. 2d 805, 814 (D. Neb. 2004); Planned Parenthood Fed’n of Am. v. Ashcroft, 320 F. Supp. 2d 957, 967 (N.D. Cal. 2004). Thus Gonzales does not elucidate the First Amendment standard applied in Casey. Gonzales provides valuable insight into the relationship between the state and the medical profession and the role the state may play in ensuring that women are properly informed before making what is indisputably a profound choice with permanent and potentially harmful impacts. See infra Part III. But it says nothing about the level of scrutiny courts should apply when reviewing a claim *21 that a regulation compelling speech in the abortion context violates physicians’ First Amendment free speech rights. The fact that a regulation does not impose an undue burden on a woman under the due process clause does not answer the question of whether it imposes an impermissible burden on the physician under the First Amendment. A heightened intermediate level of scrutiny is thus consistent with Supreme Court precedent and appropriately recognizes the intersection here of regulation of speech and regulation of the medical profession in the context of an abortion procedure. [4]
III.
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.,
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,”
Gonzales, 550 U.S. at 159, is undeniably an important state
interest. The Supreme Court has repeatedly affirmed the state’s
“important and legitimate interest” in preserving, promoting,
and protecting fetal life. Roe v. Wade,
A.
Before addressing the provision’s constitutional infirmities, it is well worth identifying briefly the various state interests at stake in this case. As we noted above, the Supreme Court has forcefully reiterated that the state’s interest in protecting fetal life is important and profound. This interest derives from the state’s general interest in protecting and promoting respect for life, and has been recognized in abortion decisions without number. See, e.g., Gonzales, 550 U.S. at 158; Casey, 505 U.S. at 871; Greenville Women’s Clinic v. Bryant, 222 F.3d 157, 165-66 (4th Cir. 2000). We do not question the substantial state interest at work here.
As part of its general interest in promoting the health of
its citizens, the state also has an interest in promoting the
*24
psychological health of women seeking abortions. Appellants’ Br.
17. The state may seek to protect women both from the
psychological harm of “com[ing] to regret their choice,”
Gonzales, 550 U.S. at 159, as well as the psychological harm
from the process of obtaining an abortion itself. The Supreme
Court has also recognized a state interest in maintaining “the
integrity and ethics of the medical profession,” which includes
promoting a healthy doctor-patient relationship, Washington v.
Glucksberg, 521 U.S. 702, 731 (1997); see also Gonzales, 550
U.S. at 157, and respecting physicians’ professional judgment,
see Casey,
However, that important state interests are implicated in
the abortion context is only the starting point for our
analysis. Though physicians and other professionals may be
subject to regulations by the state that restrict their First
Amendment freedoms when acting in the course of their
professions, professionals do not leave their speech rights at
the office door. See Lowe v. SEC, 472 U.S. 181, 229-30 (1985)
(White, J., concurring in the judgment). Any state regulation
that limits the free speech rights of professionals must pass
the requisite constitutional test. The Display of Real-Time View
Requirement must directly advance an important state interest in
a manner that is drawn to that interest and proportional to the
burden placed on the speech. See Sorrel,
B.
North Carolina contends that the Display of Real-Time View
Requirement is merely “reasonable . . . regulation by the State”
of the medical profession that does not violate the physicians’
First Amendment rights any more than informed consent
requirements do. Appellants’ Br. 22-25 (quoting Tex. Med.
Providers Performing Abortion Servs. v. Lakey,
Traditional informed consent requirements derive from the
principle of patient autonomy in medical treatment. Grounded in
self-determination, obtaining informed consent prior to medical
treatment is meant to ensure that each patient has “the
information she needs to meaningfully consent to medical
procedures.” Am. Coll. of Obstetricians & Gynecologists & the
Am. Med. Ass’n (“ACOG & AMA”) Br. 5; see also AMA, Op. 8.08 –
Informed Consent (2006). As the term suggests, informed consent
consists of two essential elements: comprehension and free
consent. ACOG & AMA Br. 7; ACOG, Comm. Op. No. 439 - Informed
*26
Consent, at 2 (2012). Comprehension requires that the physician
convey adequate information about the diagnosis, the prognosis,
alternative treatment options (including no treatment), and the
risks and likely results of each option. ACOG & AMA Br. 7; ACOG,
Comm. Op. No. 439, at 3, 5; see also J.A. 359 (declaration of
Dr. Anne Drapkin Lyerly); Canterbury v. Spence, 464 F.2d 772,
780-81 (D.C. Cir. 1972). Physicians determine the “adequate”
information for each patient based on what a reasonable
physician would convey, what a reasonable patient would want to
know, and what the individual patient would subjectively wish to
know given the patient’s individualized needs and treatment
circumstances. ACOG, Comm. Op. No. 439, at 5. Free consent, as
it suggests, requires that the patient be able to exercise her
autonomy free from coercion. Id. at 3, 5. It may even include at
times the choice not to receive certain pertinent information
and to rely instead on the judgment of the doctor. Id. at 7;
ACOG & AMA Br. 8. The physician’s role in this process is to
inform and assist the patient without imposing his or her own
personal will and values on the patient. J.A. 359-60
(declaration of Dr. Anne Drapkin Lyerly); ACOG, Comm. Op. No.
439, at 3. The informed consent process typically involves a
conversation between the patient, fully clothed, and the
physician in an office or similar room before the procedure
begins. ACOG & AMA Br. 8, 23; ACOG, Comm. Op. No. 439, at 4.
*27
Once the patient has received the information she needs, she
signs a consent form, and treatment may proceed. See, e.g.,
The Pennsylvania statute challenged in Casey prescribes a
modified form of informed consent for abortions. To provide
informed consent, the statute first requires the physician to
orally inform the woman of the nature of the abortion procedure,
the “risks and alternatives to the procedure . . . that a
reasonable patient would consider material to the decision”
whether to have an abortion, the risks of carrying the child to
term, and the “probable gestational age of the unborn child”
when the abortion is to be performed.
The statute continues on, however, to require that the
physician must inform the woman, at least twenty-four hours in
advance, that the state prints materials that describe the
unborn child, and a copy must be provided to her if she wants
it.
C.
The burdens trace in part from deviations from the traditions of informed consent. The most serious deviation from standard practice is requiring the physician to display an image and provide an explanation and medical description to a woman who has through ear and eye covering rendered herself temporarily deaf and blind. This is starkly compelled speech that impedes on the physician’s First Amendment rights with no counterbalancing promotion of state interests. The woman does not receive the information, so it cannot inform her decision. In fact, “[t]he state’s own expert witness agrees that the delivery of the state’s message in these circumstances does not provide any information to the patient and does not aid *29 voluntary and informed consent.” Stuart v. Loomis, 992 F. Supp. 2d 585, 602 (M.D.N.C. 2014). And while having to choose between blindfolding and earmuffing herself or watching and listening to unwanted information may in some remote way influence a woman in favor of carrying the child to term, forced speech to unwilling or incapacitated listeners does not bear the constitutionally necessary connection to the protection of fetal life. Moreover, far from promoting the psychological health of women, this requirement risks the infliction of psychological harm on the woman who chooses not to receive this information. She must endure the embarrassing spectacle of averting her eyes and covering her ears while her physician -- a person to whom she should be encouraged to listen -- recites information to her. We can perceive no benefit to state interests from walling off patients and physicians in a manner antithetical to the very communication that lies at the heart of the informed consent process.
The constitutional burden on the physicians’ expressive
rights is not lifted by having a willing listener. The
information the physician had to convey orally in Casey was no
more than a slight modification of traditional informed consent
disclosures. The information conveyed here in the examining room
more closely resembles the materials that in Casey were provided
by the state in a pamphlet. Casey, 505 U.S. at 881. A physician
*30
in Pennsylvania need only inform the patient that such
information is available and, if requested, provide her with a
copy of the state-issued pamphlet.
Though the information conveyed may be strictly factual, the context surrounding the delivery of it promotes the viewpoint the state wishes to encourage. As a matter of policy, the state may certainly express a preference for childbirth over abortion, Webster v. Reprod. Health Servs., 492 U.S. 490, 511 (1989), and use its agents and written materials to convey that message. However the state cannot commandeer the doctor-patient relationship to compel a physician to express its preference to *31 the patient. As the district court noted, “[b]y requiring providers to deliver this information to a woman who takes steps not to hear it or would be harmed by hearing it, the state has . . . moved from ‘encouraging’ to lecturing, using health care providers as its mouthpiece.” Stuart, 992 F. Supp. 2d at 609. Transforming the physician into the mouthpiece of the state undermines the trust that is necessary for facilitating healthy doctor-patient relationships and, through them, successful treatment outcomes. See Am. Pub. Health Ass’n (“APHA”) Br. 9-10. The patient seeks in a physician a medical professional with the capacity for independent medical judgment that professional status implies. The rupture of trust comes with replacing what the doctor’s medical judgment would counsel in a communication with what the state wishes told. It subverts the patient’s expectations when the physician is compelled to deliver a state message bearing little connection to the search for professional services that led the patient to the doctor’s door.
Furthermore, by failing to include a therapeutic privilege
exception, the Display of Real-Time View Requirement interferes
with the physician’s professional judgment and ethical
obligations. The absence of a therapeutic exception means that
the state has sought not only to control the content of the
physician’s speech, but to dictate its timing. Under the
Requirement, the physician must display and describe the fetus
*32
simultaneously with the ultrasound procedure, and he must do
this at least four and not more than seventy-two hours prior to
the abortion procedure. See
The Casey court found it relevant that the Pennsylvania
statute contained a therapeutic exception so that it “does not
prevent the physician from exercising his or her medical
judgment.” 505 U.S. at 883-84. North Carolina by contrast
requires the physician to “[d]isplay the images” and “[p]rovide
a simultaneous explanation of what the display is depicting”
along with “a medical description of the images,” with no
exception.
In sum, though the State would have us view this provision
as simply a reasonable regulation of the medical profession,
these requirements look nothing like traditional informed
consent, or even the versions provided for in Casey and in
D.
Other aspects of the Requirement are equally unusual. As described above, informed consent frequently consists of a fully-clothed conversation between the patient and physician, often in the physician’s office. It is driven by the “patient’s particular needs and circumstances,” J.A. 388 (declaration of Dr. Amy Weil), so that the patient receives the information he or she wants in a setting that promotes an informed and thoughtful choice.
This provision, however, 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.
Appellees’ Br. 13; APHA Br. 8. Informed consent has not
generally been thought to require a patient to view images from
his or her own body, ACOG & AMA Br. 7, much less in a setting in
which personal judgment may be altered or impaired. Yet this
provision requires that she do so or “avert[] her eyes.”
There are few absolutes in the difficult area of professional regulation and professional expression. But there do exist constraints on the permissible interference with the doctor-patient relationship; there are limits on state attempts to compel physicians to deliver its message, especially when that message runs counter to the physician’s professional judgment and the patient’s autonomous decision about what information she wants. Though states may surely enact legislation to ensure that a woman’s choice is informed and thoughtful when she elects to have an abortion, states cannot so compromise physicians’ free speech rights, professional judgment, patient autonomy, and other important state interests in the process. The means here exceed what is proper to promote the undeniably profound and important purpose of protecting *36 fetal life. See, e.g., Sorrel, 131 S. Ct. at 2667-68, 2670 (holding that Vermont statute unconstitutionally burdened speech because “[w]hile Vermont’s stated policy goals may be proper, § 4631(d) does not advance them in a permissible way” under intermediate scrutiny).
IV.
“The right to speak and the right to refrain from speaking
are complementary components of the broader concept of
‘individual freedom of mind.’” Wooley v. Maynard, 430 U.S. 705,
714 (1977) (quoting W. Va. State Bd. of Educ. v. Barnette, 319
U.S. 624, 637 (1943)). Regulations which compel ideological
speech “pose the inherent risk that the Government seeks not to
advance a legitimate regulatory goal, but to suppress unpopular
ideas or information or manipulate the public debate through
coercion rather than persuasion.” Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 641 (1994). Abortion may well be a special
case because of the undeniable gravity of all that is involved,
but it cannot be so special a case that all other professional
rights and medical norms go out the window. 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 district court did not err in concluding
that
AFFIRMED
Notes
[1] The Third Amended Complaint also challenged both the
Display of Real-Time View Requirement and the Informed Consent
to Abortion provision,
[2] After the district court’s order granting the preliminary injunction, several individuals and pregnancy counseling centers moved to intervene as defendants. The district court denied the motion, Stuart v. Huff, 2011 WL 6740400 (M.D.N.C. Dec. 22, 2011), and this court affirmed, Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013).
[3] Plaintiffs seem to suggest that the Display of Real-Time View Requirement constitutes viewpoint discrimination and that we should strike the provision down on that basis. See Appellees’ Br. 2, 54. Because we find that the Requirement fails even intermediate scrutiny, infra Part III, it is unnecessary for us to definitively determine whether the compelled speech here requires strict scrutiny. See Greater Balt., 721 F.3d at 288 (cautioning against “precipitately concluding that the [provision] is an exercise of viewpoint discrimination”).
[4] The state’s amici insist that the decision we reach today will permit future litigants to use the First Amendment “as a ‘trump card’ in a multitude of challenges to abortion regulations, allowing abortion proponents to provoke a ‘back- door,’ strict scrutiny approach” that will override Casey’s undue burden standard. Law Professors’ Br. 27. We think this concern is overdrawn. The great majority of abortion regulations do not compel anyone’s speech, and the great majority of litigants do not raise First Amendment concerns.