A popular new piece of abortion legislation may eventually end up in front of the Supreme Court as federal courts have disagreed over whether it violates the Constitution.
The law—versions of which have passed in Oklahoma, North Carolina and Texas—mandates that before a woman is allowed to obtain an abortion, doctors must give her an ultrasound, describe the procedure out loud and display the images for her. Five other states are considering similar bills, while six more already require the ultrasound before an abortion, although they don't insist upon the out loud description or the showing of images to patients.
To try to knock down these laws, abortion rights supporters have taken an interesting approach in court. Instead of arguing that the ultrasound and its description are an undue burden on women trying to receive a legal abortion, they say that the law is actually infringing on the First Amendment rights of doctors, who must recite facts about the fetus against their will. The Supreme Court has generally been supportive of this so-called "compelled speech" argument, ruling in 1943 that students could not be forced to recite the Pledge of Allegiance, for example. But commercial speech has been treated quite differently, which is why the government can get away with requiring cigarette companies to place warning labels on their cartons.
So far, the free speech tactic seems to be making headway. In Oklahoma, the state's highest court enjoined the ultrasound provision, and in North Carolina, a U.S. district judge blocked a similar ultrasound condition from taking effect. (The North Carolina law's supporters are appealing the decision, so the 4th Circuit Court of Appeals is likely to hear the case sometime next year.) In Texas, a U.S. district judge struck down the law before he was reversed by the 5th Circuit Court of Appeals in January. Texas is now the only state that requires a doctor to give an ultrasound, describe it and show it to the patient before she can receive an abortion.
The 5th Circuit sided with Texas' law by citing Planned Parenthood v. Casey, the 1992 Supreme Court ruling that held that states could require abortion providers to give women illustrated pamphlets showing the development of a fetus as long as the information is "truthful and non-misleading." Casey also said that states could require women to receive information aiming to dissuade them from getting an abortion as long as it didn't interfere with the patient's ability to choose an abortion. The 5th Circuit ruled in January that a sonogram image is the "epitome" of truthful information, even if it is more graphic than the informational pamphlets showing the development of fetuses that Casey approved. The 5th Circuit also found that abortion providers can be required to describe the fetus because they are subject to "reasonable" speech regulations as part of the state's licensing authority.
Opponents of the law in Texas are expected to appeal to the Supreme Court this month. Scott Gaylord, a professor at Elon School of Law, told Yahoo News that he thinks it's unlikely the court would take the case until the appeals courts have split on the issue. If the 4th Circuit breaks with the 5th and says the law infringes on doctors' speech rights, it's very likely the Supreme Court will step in and settle the dispute. At that point, the free speech focus of the abortion rights crowd might pay off.
"In some ways it's a good strategy because ... the court under Chief Justice Roberts has been extremely protective of First Amendment speech rights," Gaylord says. He referenced court decisions that allowed a fringe anti-gay group to protest soldiers' funerals, one that struck down violent video game restrictions and another that swept aside congressional campaign finance reform on the grounds that corporations have the same speech rights as individuals.
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