U.S. District Judge Catherine Eagles came to the defense of North Carolina women on January 17, 2014, ruling that a provision in a state law requiring providers to perform an ultrasound four hours prior to an abortion was unconstitutional based on restriction of free speech. The law, called the Woman’s Right to Know Act, was passed by a Republican-controlled general assembly in 2011 and promptly vetoed by Democratic then-governor Bev Perdue. Both houses were able to override the veto and thus it became law; however the ultrasound portion of the law was enjoined as reproductive justice advocates promptly sued on grounds of constitutionality. The requirement was in limbo for two and a half years, but Justice Eagles ruled just two months after the U.S. Supreme Court declined hearing a challenge to the unconstitutionality of a similar law in Oklahoma.
North Carolina’s ultrasound abortion requirement not only would have required an ultrasound four hours prior to the procedure – use of ultrasound to determine gestational age and location are standard medical practice – but mandated that the physician orient the ultrasound monitor so that patients had to view it (though they had the option to avert their eyes), describe the fetus including size and external and internal bodily observations, and offer the patient the opportunity to hear the fetal heartbeat. While the patient could decline the last component, physicians were required to continue their description of the fetus despite protest or request to cease.
This four hour period is actually arguably more inconvenient than the original stipulation, though the four hour period was the result a previous court review that found a 24 hour waiting period to be an excess burden. The law in its original approved form required in-person counseling and the ultrasound one day prior to an abortion. After review, the counseling was permitted over the phone but the 24 hour period stood. The ultrasound waiting period was changed to four hours. Therefore, a patient had a counseling session at one point, then had to go into the clinic a day later for the ultrasound, and wait for a large portion of the day for a procedure. There were no exceptions permitted for this, including for cases of sexual assault and fetal anomaly.
Justice Eagles had powerful words in her decision, calling the law “one-size-fits-all” and “an impermissible attempt to compel these providers to deliver the state’s message in favor of childbirth and against abortion”. Only Louisiana, Texas, and Wisconsin have similar laws on their books, though seven states require that patients must be offered the opportunity to see the ultrasound. In the Woman’s Right to Know Act, not only were no exceptions made, but Justice Eagles expressed concern that regarding the forced “state’s message to women who do not want to hear it or who are at risk of significant psychological harm from receiving it”. But ultrasounds are already standard practice and general practice includes permitting women to see their ultrasounds. Carolina Abortion Fund board member and former clinic employee Kelsea McLain says, “…I performed about 400 [ultrasounds]…My process involved asking the patient what she wanted to see, or know, if anything. I was surprised at how many women ended up wanting to see their ultrasound and almost everyone wanted to know how far along they were. I’d say maybe a tenth of them would change their mind.”
Thus it is conceivable that forced ultrasound viewing and verbal description would actually decrease the number of women changing their minds (as frustration tends to lead to anger and women may simply emotionally shut down and insist on moving through the process), and this legislation was actually intended to restrict access, either blocking women who do not have financial means for a two day event or causing scheduling conflicts and making the appointment-making process more challenging.
Cecile Richards, president of the Planned Parenthood Action Fund, said in a statement, “Today’s ruling marks a major victory for North Carolina women and sends a message to lawmakers across the country: It is unconstitutional for politicians to interfere in a woman’s personal medical decisions.” Julie Rikel of the Center for Reproductive Rights called it a great win for the first amendment, saying, “What the judge said here is that the state is not allowed to use doctors to force its own ideology onto patients, especially when the doctor feels that doing that could harm the patients.”
Anti-woman groups were not celebrating though. Tami Fitzgerald of the NC Values Coalition dramatized to the Raleigh News & Observer, “The founders would roll over in their graves if they knew that the First Amendment is being used to keep women from receiving sound medical advice about their own bodies.” State House Majority leader Paul Stam, a co-sponsor of the bill along with co-sponsors of the famed North Carolina “Motorcycle Vagina” legislation, stated his confidence that a state appeal would follow shortly.
But Governor McCrory thankfully had other ideas, surprising even RH Reality Check, who previously predicted appeal “almost certain”. On January 25, the Governor’s office issued a statement saying that the financial and time obligations required to defend this single provision of the law were not justified and that “[t]he heart of the legislation remains intact and patients will still receive access to important information and ample time needed to make decisions”. The administration’s surprising decision is perhaps in light of the renewed vigilance with which North Carolina reproductive justice advocates have watched the administration after the summer 2013 antics in which the “Motorcycle Vagina” TRAP legislation was born. After increasing pressure and outcry, including now frequent mockery of the state’s political affairs on the global stage of social media and cable news, McCrory’s administration has appeared to ever so slowly soften on some of its most polarizing issues, including the subject of abortion access to which he promised while campaigning to protect access to.
Congratulations to the plaintiffs in this suit against the state, to North Carolina and national reproductive health advocates who are fighting tirelessly against each antic the Republican-led assembly displays, and most importantly to women in North Carolina or who have to travel to North Carolina to access abortion.