NC's pre-abortion-ultrasound law violate's MD's 1st Amendment rights, court finds

[shira]

What a surprise: The appeals court ruled that NC cannot force doctors to describe required fetal ultrasound images to women seeking abortions.

http://www.washingtonpost.com/news/...ion-violates-free-speech-judges-rule/?hpid=z3

A Richmond appeals court panel on Monday rejected a North Carolina law requiring that women seeking abortions first undergo ultrasounds, with the fetal image displayed and described to them in detail by a doctor.

The three-judge panel of the Fourth Circuit Court of Appeals upheld a lower court’s finding that the 2011 law violated the free speech of doctors by forcing them to provide the image and description even if the woman averted her eyes or actively tried not to listen.

“The First Amendment not only protects against prohibitions of speech, but also against regulations that compel speech,” the panel wrote in its 37-page opinion.

The regulation “forces physicians to say things they otherwise would not say,” the judges said. “Moreover, the statement compelled here is ideological; it conveys a particular opinion. The state freely admits that the purpose … is to convince women seeking abortions to change their minds or reassess their decisions.”

The law, which was passed in 2011 but went unimplemented as the courts weighed it, was fairly extensive in terms of what it required doctors to tell patients. The ultrasound screen had to be positioned in such a way that the woman could see it. The doctor had to describe the presence, location and dimensions of the fetus along with the number of fetuses present and if any organs were present. If a woman did not want to hear or see, she could close her ears and look away.

Several other states, including Virginia, have ultrasound requirements, with some requiring women to undergo internal “transvaginal” ultrasounds before obtaining an abortion. Only a handful, however, have gone so far as North Carolina, and courts have had mixed opinions about such laws, upholding them in Texas and striking them down in Oklahoma.

On Monday, the North Carolina attorney general’s office said they would ask the Supreme Court to take up the matter to resolve the conflicting opinions in Texas and Richmond.

Abortion rights groups, meanwhile, cheered the development.

“We’re thrilled that the appellate court rejected this unconscionable attempt to intrude on the doctor-patient relationship,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement. “Exam rooms are no place for propaganda, and doctors should never be forced to serve as mouthpieces for politicians who wish to shame and demean women.”

 

[sandorski]

Good

 

[theeedude]

Does that mean that Republicans who passed that law violated their oath to uphold and defend the Constitution of the United States?

 

[Jaskalas]

Does that mean that Republicans who passed that law violated their oath to uphold and defend the Constitution of the United States?

Oh there we go. Anything overturned by a court places its creators as criminally liable? Seems to be where you have gone with this.

 

[cabri]

Does that mean that Republicans who passed that law violated their oath to uphold and defend the Constitution of the United States?

What about Democrats that violate their oath to uphold and defend the Constitution?

Or do you feel that such should only apply to Republicans. 😕

 

[Fern]

“The First Amendment not only protects against prohibitions of speech, but also against regulations that compel speech,”

That's why laws requiring that Miranda Rights be given are unconstitutional. Wait, what?

Fern

 

[theeedude]

Oh there we go. Anything overturned by a court places its creators as criminally liable? Seems to be where you have gone with this.

Who said anything about criminal liability? I am just talking about their oath as lawmakers to protect and defend the Constitution.
Americans shouldn't have to spend their money to go to court to defend their Constitutional rights from GOP politicians who didn't bother reading the Bill of Rights.

 

[Subyman]

That's why laws requiring that Miranda Rights be given are unconstitutional. Wait, what?

Fern

I was going to say the same thing, but held off. The reason being is there isn't an ideological agenda attached to the miranda rights. That was one of the key motivations for this ruling. The state itself admitted the only reason for forcing a doctor to show and tell was an attempt to persuade the patient to choose not to have an abortion.

 

[BoberFett]

I'm all for abortion, but for fuck's sake the arguments get ridiculous. Many of the pro-choice arguments would get completely shot down by the left if it was related to any topic OTHER than abortion.

The left loves to compel speech to protect consumers in every possible way. Every other medical procedure we need mandatory consumer education for the good of the patient, but abortion? Don't tell the patient anything, just flush it out.

 

[Subyman]

I'm all for abortion, but for fuck's sake the arguments get ridiculous. Many of the pro-choice arguments would get completely shot down by the left if it was related to any topic OTHER than abortion.

The left loves to compel speech to protect consumers in every possible way. Every other medical procedure we need mandatory consumer education for the good of the patient, but abortion? Don't tell the patient anything, just flush it out.

Yeah, where the hell are my cigarette commercials???

 

[Fern]

Yeah, where the hell are my cigarette commercials???

Or, how can the warning on packs be mandated?

Fern

 

[Subyman]

Or, how can the warning on packs be mandated?

Fern

Or what about the drug commercials where they tell you how you are going to die of diarrhea, a heart attack or suicide for taking their medicine while showing a puppy run across a field?

 

[abj13]

Every other medical procedure we need mandatory consumer education for the good of the patient, but abortion? Don't tell the patient anything, just flush it out.

Oh yeah? How many abortion consents discussions have you sat through? Abortions are just like any other procedure, informed consent is provided and written documentation is made that the risks and benefits are fully discussed with the patient.

 

[Zaap]

Yeah, where the hell are my cigarette commercials???

Give it time. You'll get plenty of them right on the pack.

 

[Screech]

Ehhhh those arguments are rather strenuous.......In one case you have a law trying to do an end-around other laws that make abortion legal by specifically forcing medical procedures and the words spoken while it is ongoing, and in the other you have laws requiring that a company selling what amounts to a poison (that some people like) have to tell people that it is, indeed, poison. I would not necessarily regard these as equal.

 

[Zaap]

Personally, I don't believe there's any point in mandatory ultrasounds for women seeking abortions. But it is true to say people are often in favor of all sorts of heavy-handed agendas imposed on others when the issue is one they support.

 

[Screech]

Personally, I don't believe there's any point in mandatory ultrasounds for women seeking abortions. But it is true to say people are often in favor of all sorts of heavy-handed agendas imposed on others when the issue is one they support.

Oh absolutely, otherwise this law never would have been passed in the first place! 😉 But yes, I agree and that is often true, as demonstrated by this law; I simply don't think that opposing this law while supporting regulations on things like cigarette boxes is a good example of such hypocrisy.

edit: although for what its worth I think regulating cig boxes and so forth is stupid for a similar reason -- I don't think that is my right to regulate

 

[Fern]

Ehhhh those arguments are rather strenuous.......In one case you have a law trying to do an end-around other laws that make abortion legal by specifically forcing medical procedures and the words spoken while it is ongoing, and in the other you have laws requiring that a company selling what amounts to a poison (that some people like) have to tell people that it is, indeed, poison. I would not necessarily regard these as equal.

Ehhhh the principle ("The First Amendment not only protects against prohibitions of speech, but also against regulations that compel speech,&#8221😉 either stands or it doesn't. Your argument sounds like "the right to free speech is constitutional, unless it's hate speech or something else I don't value".

Fern

 

[sandorski]

That's why laws requiring that Miranda Rights be given are unconstitutional. Wait, what?

Fern

Police are agents of the State, Doctors are not.

 

[Screech]

Ehhhh the principle ("The First Amendment not only protects against prohibitions of speech, but also against regulations that compel speech,&#8221😉 either stands or it doesn't. Your argument sounds like "the right to free speech is constitutional, unless it's hate speech or something else I don't value".

Fern

This is a good point, but things are never absolute. The counter to it, of course, is the strict scrutiny principle, which should generally be applied if we are discussing limiting the boundaries of amendments (well at least for the 1st; sometimes intermediate is used, etc etc.....). It is not difficult to imagine that the supreme court could decide that requiring such statements on cigarette boxes is allowed under strict scrutiny if it 1) furthers a compelling interest (ie saves lives), 2) is narrowly tailored, and 3) is the last restrictive means. 1 and 2 are easy to do in the above case; 3 is tricky but obviously could be argued. The same supreme court could simultaneously find that the NC law is unconstitutional at the same time because while infringing on the first amendment, the law 1)does not further a compelling government interest, 2) might not be narrowly tailored enough, or 3) is not the least restrictive means.

TL; DR : it is possible, using the analysis of strict scrutiny, to understand how one of these situations can be constitutional and the other, not so much.

even shorter TL DR: the world is not black and white

 

[BoberFett]

Police are agents of the State, Doctors are not.

Really? So doctors don't need to follow any of those pesky regulations? I'm sure the medical profession values your input. It will make practicing medicine so much easier.

 

[Jhhnn]

Ehhhh the principle ("The First Amendment not only protects against prohibitions of speech, but also against regulations that compel speech,”) either stands or it doesn't. Your argument sounds like "the right to free speech is constitutional, unless it's hate speech or something else I don't value".

Fern

Context is everything.

Is there some part of "Doctor Patient Relationship" you fail to comprehend?

 

[MrPickins]

This is a good point, but things are never absolute. The counter to it, of course, is the strict scrutiny principle, which should generally be applied if we are discussing limiting the boundaries of amendments (well at least for the 1st; sometimes intermediate is used, etc etc.....). It is not difficult to imagine that the supreme court could decide that requiring such statements on cigarette boxes is allowed under strict scrutiny if it 1) furthers a compelling interest (ie saves lives), 2) is narrowly tailored, and 3) is the last restrictive means. 1 and 2 are easy to do in the above case; 3 is tricky but obviously could be argued. The same supreme court could simultaneously find that the NC law is unconstitutional at the same time because while infringing on the first amendment, the law 1)does not further a compelling government interest, 2) might not be narrowly tailored enough, or 3) is not the least restrictive means.

TL; DR : it is possible, using the analysis of strict scrutiny, to understand how one of these situations can be constitutional and the other, not so much.

even shorter TL DR: the world is not black and white

No logic allowed in P&N.

 

[Zorkorist]

It's simply Government, abusing it's power.

When I think of Government, I think back to a colony on Plymouth Rock.

They've just escaped England and the King of England.

They are a colony, and they work together to survive.

And guess what, they survive the first winter.

They continue surviving, and grow, along the east coast. They establish new colonies.

They keep on growing, and establish new cities, like New York, New Hampshire.

Philadelphia, Boston.

Then they establish Government... but only as a last recourse.

-John

 

[Zorkorist]

Now we have Government telling us whether or not we can have children.

Whether or not we can drive taxis.

etc.

-John