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.