The Supreme Court has the power to choose which cases it hears, and soon it will decide whether to examine mandatory ultrasounds laws. More and more states have passed laws requiring that doctors perform ultrasounds on their patients seeking abortions.
North Carolina was one of those states. Its Orwellian-named “Women’s Right to Know Act” mandated that before any woman could end her pregnancy, doctors had to perform an ultrasound, show the image to their patients, and give “a simultaneous explanation of what the display is depicting” – whether the woman wanted the information or not. The law made no exceptions for women aborting because of fetal anomalies or rape.
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Fortunately, the Fourth Circuit Court of Appeals struck down North Carolina’s law on the grounds that it violated the free speech rights of doctors. North Carolina, however, in a petition for certiorari due March 23, is asking the Supreme Court to review that decision. The Supreme Court should not, because the Fourth Circuit was correct.
The Free Speech Clause of the U.S. Constitution is best known for making it unconstitutional for the government to censor your speech. The Free Speech Clause also bars the government from forcing you to speak against your will. Free speech protections are not absolute and many government regulations of speech are constitutional. But as a rule, the government cannot compel you to voice its ideological message.
Consequently, North Carolina should not be able to force doctors to convey its pro-life view of abortion.
There is no denying the pro-life message behind mandatory ultrasound laws. As the Fourth Circuit noted, “While it is true that the words the state puts into the doctor’s mouth are factual, that does not divorce the speech from its moral or ideological implications.” The point of mandatory ultrasound laws – which mandate only those facts that promote the pro-life position – is to persuade women to change their minds about abortion. But whatever the worthiness of its message, the government runs afoul of the Free Speech Clause when it compels private citizens, like doctors, to express its viewpoint.
To be sure, the government may regulate the practice of medicine, even if a regulation incidentally affects speech. After all, state laws that require informed consent involve speech yet do not violate the Free Speech Clause. But the information mandated here goes far beyond anything that has ever been recognized as informed consent.
Standard informed consent requirements are designed to ensure that patients understand the physical risks and benefits of the proposed procedure and its alternatives. Notably, these requirements are neutral as to what decision the patient makes. The goal of informed consent is to enhance patient autonomy by providing the objective medical information a patient needs to make her own decision.
In contrast, the compulsory description of the unwanted pregnancy is, as the Fourth Circuit put it, about conveying “the full weight of the state’s moral condemnation.” Furthermore, unlike the informed consent conversation that takes place in a doctor’s office, the mandatory ultrasound occurs “while the patient [is] half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina.”
If the Free Speech Clause means anything, it is that individuals get to decide what ideological opinions to express. Because North Carolina’s mandatory ultrasound law forces doctors to convey the government’s viewpoint on abortion, it violates our Constitution.
Too often, normal constitutional rules are suspended when they appear in the context of an abortion case – a trend termed “abortion exceptionalism.” The Fourth Circuit resisted this trend, and ensured free speech was protected for everyone, including doctors who perform abortions. Its decision should stand.
Caroline Mala Corbin is a law professor at the University of Miami School of Law.