Friday, January 09, 2015

Second Thoughts About the Fourth Circuit's First Amendment Ruling on Mandatory Ultrasound for Women Seeking Abortions

by Michael Dorf

Last month, a panel of the US Court of Appeals for the Fourth Circuit, in an opinion by Judge Wilkinson, invalidated North Carolina's law mandating that a doctor providing an abortion must perform an ultrasound on the woman, and simultaneously show and describe the results (although the law permits the woman to avert her eyes and cover her ears). I agree with the bottom line but the case raises at least two issues for me. I'll address them here. Because the ruling creates an apparent circuit split, there is a good chance that this case or one like it will reach the SCOTUS before too long.

(1) Level of Scrutiny

The appeals court, following the district court (whose ruling it affirms) applies a "heightened intermediate scrutiny standard," because the law at issue is a content-based regulation of professional commercial speech. That seems to me a plausible reading of the precedents but "heightened intermediate scrutiny" is not yet part of the official constitutional lexicon. I play a game with my con law students each year in which we try to figure out how many levels of scrutiny the Court applies. There are at least the following: conventional rational basis scrutiny; rational basis scrutiny with teeth (cases like Moreno, Cleburne, Romer, and Windsor); the modest intermediate scrutiny one sees in time, place, and manner cases; traditional intermediate scrutiny; intermediate scrutiny with the requirement of an "exceedingly persuasive justification" (US v. Virginia); the forgiving form of strict scrutiny applied in (some) affirmative action cases (Grutter); and traditional strict scrutiny. That's seven. Is "heightened intermediate scrutiny" the equivalent of one of these or is it a new, eighth category?

Apart from the proliferation of levels of scrutiny, the application of a pretty demanding standard in this context is somewhat worrisome because of its potential consequences in other cases. Consider the California law forbidding licensed therapists from engaging in "sexual orientation change efforts" on minors. That law was upheld against a free speech challenge by the Ninth Circuit, which applied rational basis scrutiny. Now there are reasons one might think that the North Carolina ultrasound law is more intrusive on speech than the California law, and there are also reasons to uphold the California law while striking down the North Carolina law, regardless of what level of scrutiny applies. But still, the Fourth Circuit's solicitousness for physician speech could, in the wrong hands, cause serious mischief.

(2) The Insatiable Speech Clause

The Fourth Circuit treats the challenge to the North Carolina law as a free speech case, rather than an abortion case, even though it should have been easy to invalidate the law as an "undue burden" on the abortion right, given that its obvious purpose is to make it difficult for women to have abortions, not--as the Court in Planned Parenthood v. Casey allows--through "persuasive" means, but through humiliation and intimidation. As the Fourth Circuit rightly observes, there is something deeply problematic about the state requiring a woman to be given a description of her fetus by her doctor when she is disrobed and while he is conducting the ultrasound.

The Fourth Circuit treats the problem as a burden on the doctor's right to speak, which it surely is, but it is much more a burden on the woman, and not just because it overrides her right not to receive information. That right is worth something, but in a society that respects free speech, one has at best an imperfect ability to avoid unwanted information. In a chapter of our forthcoming book on abortion and animal rights, Professor Colb and I explore the question of whether and when activists (for fetuses or non-human animals) may be justified in exposing people to graphic images of the consequences of their choices. We think the issue is complex, but even granting some power of the state (or private actors) to try to get people to listen to what they don't want to hear, the North Carolina law crosses over from insistent speech to insistent trauma. In doing so, it seems to me, it implicates the right to abortion more obviously than the right to speech (seen here as a doubly derivative right not to receive information).

It is not really surprising that the Fourth Circuit would treat the case as a speech case rather than an abortion case. The modern Court and the corresponding culture tend to treat speech as an unalloyed good, whereas abortion remains a controversial right. But it's not just abortion. Over the last couple of decades, religion claims have also tended to fare best when made as speech claims. (Think of a case like Rosenberger.) I don't deny that these cases implicate speech interests, but that's not what they chiefly implicate, and deciding them under the speech rubric feels at least somewhat dishonest.

N.B.:  Thanks to Steve Shiffrin for the second point. Although he didn't preview this post, I found his work on the expansiveness of free speech in American law and culture--including in a forthcoming book--very insightful.


David Ricardo said...

Mr. Dorf makes excellent points here, but there is an important ancillary point with respect to physicians and the right of free speech and conservatives who say they care about the right of free speech but who in practice do not.

Compare the free speech argument in the North Carolina case with the Florida Privacy of Firearms Owner Act. In that law the conservatives in Florida mandated that physicians could not inquire about the presence of firearms in the house. The basis of the law was that firearms owners had a right to privacy, a right to not even be asked about the presence of firearms even though they had the right not to answer such a question. The law was recently upheld by an appeals court decision.

Now note that in the North Carolina case conservatives have taken the exact opposite position. Their law says that doctors must present certain information to patients even if the patient states that they do not wish to be presented with the information and even if the doctor does not wish to present the information or conduct a procedure. So with respect to firearms the right of privacy overrides the right of free speech of physicians making legitimate inquiries that are related to the health and well being of their patients because those inquiries are on a subject supported by conservatives. With respect to abortion rights, the forcing of government positions on both physicians and patients overrides the right of free speech of physicians and the right of privacy of patients.

The conclusion, that freedom of speech is not a principle, is not a doctrine or even a basic right as far as conservatives are concerned. Instead freedom of speech is a tool for conservatives to impose their political beliefs on unwilling members of the public. In their world speech that supports their position is not only protected but in some cases mandated, speech that does not support their positions can be prohibited. This is a real threat, but one that the public seems unwilling to recognize and one which the conservatives on the Supreme Court who regularly invoke freedom of speech will not protect us from. If, as Mr. Dorf says using the principle of free speech in the abortion rights cases in North Carolina and elsewhere and “deciding them under the speech rubric feels at least somewhat dishonest”, then the Florida case is outright criminality.

Joe said...

The use of free speech here is pragmatic for those supporting abortion rights since it might provide more of a chance to get at least five votes in the USSC.

It also shows that the right to abortion includes w/i it a range of interests, including 1A interests. Rust v. Sullivan would be a prime example here but the ultrasound law and some other biased counseling laws come to mind.

The law here clearly has substantive liberty concerns -- forced ultrasounds after all are at stake, involving in some cases internal placement. But, the free speech concerns alone involve both parties. Counseling patients is important for both parties. These biased laws interfere just as let's say a regulation that bans physicians even talking to their patients about medicinal marijuana.

Finally, the concern that this will lead to "mischief" is of some merit -- there are certain basic rules that are allowable here, including requiring basics of informed consent.

Also, regulating medicine can include speech -- psychiatry involves largely speech. The CA does affect minors. Also, the 4CA opinion highlighted that the law here was explicitly not for the woman -- it was to advance anti-abortion interests.

Note: I think conservatives in various cases use allegedly neutral things (federalism comes to mind) with an ideological slant. But, when it comes to free speech, that is somewhat less true. Scalia's support of a right to burn the flag in protest is not an outlier here. This does split the movement in various ways and abortion does skewer things.

Don Smith said...

Shouldn't this be considered a compelled speech case?

Cody Fenwick said...

Thanks for the interesting post.

I'm not sure why we should think people have a right not to receive information, even a limited right. I think the idea of such a right, no matter how it's specified, would create the appearance of conflicts where none exist. But derivative of a woman's right to abortion, she has a right not to be harassed in the pursuit of an abortion. And it's when the provision of "information" constitutes harassment, we have reason to object. Given that these laws are clearly implemented without medical need, but for the express purpose of, as you say, humiliating and intimidating the woman, even against her (hypothetical) objections, I think it's pretty obvious that this law constitutes mandated harassment.

David Ricardo said...

Cody raises a doubt as to why we should think there is a right not to receive information, but then answers that question in support of the right not to receive information with the following statement,

“But derivative of a woman's right to abortion, she has a right not to be harassed in the pursuit of an abortion

Exactly, the right not to be harassed is a right not to receive information.” The term harassment is probably the best description of forcing information upon an unwilling recipient. And it is not just with respect to abortion that this right exists. It exists for example in the area of an individual verbally forcing sexual advances/speech upon an unwilling recipient. That recipient has the right not to receive such information. Sexual harassment is not protected speech and stands for the right not to receive information. The right exists in the area of Freedom of Religion. To practice my religion which denies the divinity of Jesus gives me the right not to be forced to receive information in support of the divinity of Jesus. The examples here are endless.

The point being, conservatives do not respect free speech or the right to be free of verbal harassment defined as unwanted or forced upon speech. They simply adopt the principal when it supports their policy positions and oppose it when it does not. And that is a point which any discussion of free speech as it relates to government policy must address.

Joe said...

I'm not sure why we should think people have a right not to receive information, even a limited right.

How is this different from coerced speech? I'm somewhat unsure really since a "limited right" here as DR highlights would go hand and hand with a right to be free from harassment.

I can tell people not to call me -- reject the receipt of information. The issue here is that there can be limited rules for informed consent or some right to try to inform. But, at some point, it goes too far.

Cody Fenwick said...

"the right not to be harassed is a right not to receive information."

Being harassed is not a form of receiving information, though a single act could be both (as I suggest applies in the case under examination.)

One could be harassed by being whistled at repeatedly, being berated in a language one doesn't understand, or being subject to obscene gestures. You might argue that all of these require "receiving information" in some sense, but it's not a meaningful sense. Being punched in the face also involves receiving information in this very minimal sense (pain receptors send information), but it's not the receiving of information that's objectionable, it's the assault (or, likewise, the harassment.) It's the fact that a speech act serves to harass, rather than merely communicate information, that is problematic.

Alternatively, we might imagine that doctors are required by law to offer vaccines, or alternative treatments. Even if someone objected to this information, it seems to me there would be a plausible case that this is not harassment. So this distinction is worth preserving.

What kind of required receipt of information constitutes harassment is a judgement we must make based on the consequences of the requirement, the subjective state of the receivers, the legitimate interests individuals have in receiving or not receiving information, the greater social context in which this all takes place. Other considerations might also apply.

Shag from Brookline said...

Alas, the facility of the TV remote is not readily available for one to ignore much of unwanted rights of others pursuant to the 1st A, especially in public places. Then again, the 1st A is not absolutist, making it necessary sometimes to challenge unwanted expressions of others' 1st A rights, including in both public and private venues. The concern is, however, that the 1st A absolutists also seem to be 2nd A absolutists.

Joe said...

The harassment line makes sense but it is being expressed in a confusing fashion. Take this:

"required receipt of information constitutes harassment"

If "harassed is not a form of receiving information," how can "receipt of information" ever be harassment?

If you tell someone to stop calling you and s/he doesn't, it can be harassment. This is true even if each time they pass along information during the call. "Information" doesn't disappear just because the means is illegitimate.

I have a right not to receive information in a slew of contexts. I don't have to accept literature informing me about candidates. In certain contexts, like at a doctor's office, yes, some sort of information can be required. Then, how it is provided can be the test.

Unknown said...

Can someone explain how this represents a circuit split?

Joe said...

If you read the opinion here, the opinion explicitly disagrees with at least one circuit that upheld a similar law.

Unknown said...

As the Fourth Circuit rightly observes, there is something deeply problematic about the state requiring a woman to be given a description of her fetus by her doctor when she is disrobed and while he is conducting the brushes
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