North Carolina abortion law violates the First Amendment, says the Fourth Circuit

Stuart v. Camnitz, No. 14-1150 (4th Cir. Dec. 22, 2014).

In 2011, over the governor’s veto, the North Carolina legislature enacted a new law on abortion. Under the law, when a woman seeks an abortion, the physician must perform an ultrasound and describe the fetus to the woman in detail, even if the woman averts her eyes and refuses to hear (a possibility that the legislature anticipated). 

Physicians now challenge this law on constitutional grounds. The First Amendment forbids the government both to ban speech and to compel it. The physicians claim that the North Carolina law compels them to speak in violation of the First Amendment. 

The Fourth Circuit, speaking through Judge Wilkinson, agrees. This is “quintessential compelled speech,” and the speech compelled here “is ideological; it conveys a particular opinion” about the meaning of an abortion. Yes, states can regulate the medical profession, but physicians don’t leave their First Amendment rights at the clinic door. This North Carolina law, says the court, doesn’t require certain conduct or establish a certain standard of care. It “requires doctors to ‘say’ as well as ‘do.’” And it goes too far in regulating speech. As I read the Fourth Circuit’s opinion, the law’s main constitutional infirmity is that it substitutes the state’s ideological viewpoint for the physician’s professional judgment. While professional judgment is necessarily sensitive to particular needs and circumstances, the North Carolina law is the same for all patients. 

In striking down the law, the Fourth Circuit parts ways from the Fifth and Eighth Circuits. It may ultimately be the Supreme Court that decides whether North Carolina’s law is constitutional.