Gretchen Stuart v. Paul Camnitz , 774 F.3d 238 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1150
GRETCHEN S. STUART, MD, on behalf of herself and her
patients seeking abortions; JAMES R. DINGFELDER, MD, on
behalf of himself and his patients seeking abortions; DAVID
A. GRIMES, MD, on behalf of himself and his patients
seeking abortions; AMY BRYANT, MD, on behalf of herself and
her patients seeking abortions; SERINA FLOYD, MD, on behalf
of herself and her patients seeking abortions; DECKER &
WATSON, INC., d/b/a Piedmont Carolina Medical Clinic;
PLANNED PARENTHOOD OF CENTRAL NORTH CAROLINA; A WOMAN'S
CHOICE OF RALEIGH, INC.; PLANNED PARENTHOOD HEALTH SYSTEMS,
INC.; TAKEY CRIST, on behalf of himself and his patients
seeking abortions; TAKEY CRIST, M.D., P.A., d/b/a Crist
Clinic for Women,
Plaintiffs - Appellees,
v.
PAUL S. CAMNITZ, MD, in his official capacity as President
of the North Carolina Medical Board and his employees,
agents and successors; ROY COOPER, in his official capacity
as Attorney General of North Carolina and his employees,
agents and successors; ALDONA ZOFIA WOS, in her official
capacity as Secretary of the North Carolina Department of
Health and Human Services and her employees, agents and
successors; JIM WOODALL, in his official capacity as
District Attorney ("DA") for Prosecutorial District ("PD")
15B and his employees, agents and successors; LEON STANBACK,
in his official capacity as DA for PD 14 and his employees,
agents and successors; DISTRICT ATTORNEY DOUGLAS HENDERSON,
in his official capacity as DA for PD 18 and his employees,
agents and successors; BILLY WEST, in his official capacity
as DA for PD 12 and his employees, agents and successors; C.
COLON WILLOUGHBY, JR., in his official capacity as DA for PD
10 and his employees, agents and successors; BENJAMIN R.
DAVID, in his official capacity as DA for PD 5 and his
employees, agents and successors; ERNIE LEE, in his official
capacity as DA for PD 4 and his employees, agents and
successors; JIM O'NEILL, in his official capacity as DA for
PD 21 and his employees, agents and successors,
Defendants - Appellants,
JOHN THORP,
Intervenor/Defendant,
FRANCIS J. BECKWITH, MJS, PhD; GERARD V. BRADLEY; TERESA S.
COLLETT; DAVID K. DEWOLF; RICK DUNCAN; EDWARD M. GAFFNEY;
STEPHEN GILLES; MICHAEL STOKES PAULSEN; RONALD J. RYCHLAK;
RICHARD STITH; RUTH SAMUELSON; PAT MCELRAFT; PAT HURLEY;
MARILYN AVILA; SUSAN MARTIN; CAROLYN M JUSTICE; RENA W.
TURNER; MICHELE D. PRESNELL; SARAH STEVENS; JACQUELINE
MICHELLE SCHAFFER; DEBRA CONRAD; MARK BRODY; CHRIS WHITMIRE;
ALLEN MCNEILL; DONNY LAMBETH; GEORGE CLEVELAND; LINDA
JOHNSON; DAVID CURTIS; JOYCE KRAWIEC; SHIRLEY RANDLEMEN; DAN
SOUCEK; NORMAN SANDERSON; WARREN DANIEL; BUCK NEWTON; KATHY
L. HARRINGTON; ANDREW BROCK,
Amici Supporting Appellant,
AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS;
AMERICAN MEDICAL ASSOCIATION; AMERICAN PUBLIC HEALTH
ASSOCIATION,
Amici Supporting Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cv-00804-CCE-LPA)
Argued: October 29, 2014 Decided: December 22, 2014
Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.
2
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Duncan joined.
ARGUED: John Foster Maddrey, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants. Julie
Rikelman, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York,
for Appellees. ON BRIEF: Roy Cooper, Attorney General, Gary R.
Govert, Assistant Solicitor General, I. Faison Hicks, Special
Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellants. Christopher Brook,
AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL
FOUNDATION, Raleigh, North Carolina; Andrew D. Beck, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Jennifer
Sokoler, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York;
Walter Dellinger, Anton Metlitsky, Leah Godesky, O'MELVENY &
MYERS LLP, Washington, D.C.; Diana O. Salgado, New York, New
York, Helene T. Krasnoff, PLANNED PARENTHOOD FED. OF AMERICA,
Washington, D.C., for Appellees. Anna R. Franzonello, Mailee R.
Smith, William L. Saunders, Denise M. Burke, AMERICANS UNITED
FOR LIFE, Washington, D.C., for Amici Francis J. Beckwith, MJS,
PhD, Gerard V. Bradley, Teresa S. Collett, David K. Dewolf, Rick
Duncan, Edward M. Gaffney, Stephen Gilles, Michael Stokes
Paulsen, Ronald J. Rychlak, and Richard Stith. Scott W.
Gaylord, Jennings Professor, Thomas J. Molony, Associate
Professor of Law, ELON UNIVERSITY SCHOOL OF LAW, Greensboro,
North Carolina, for Amici Ruth Samuelson, Pat McElraft, Pat
Hurley, Marilyn Avila, Susan Martin, Carolyn M. Justice, Rena W.
Turner, Michele D. Presnell, Sarah Stevens, Jacqueline Michelle
Schaffer, Debra Conrad, Mark Brody, Chris Whitmire, Allen
McNeill, Donny Lambeth, George Cleveland, Linda Johnson, David
Curtis, Joyce Krawiec, Shirley Randlemen, Dan Soucek, Norman
Sanderson, Warren Daniel, Buck Newton, Kathy L. Harrington, and
Andrew Brock. Kimberly A. Parker, Alathea E. Porter, Thaila K.
Sundaresan, Tiffany E. Payne, WILMER CUTLER PICKERING HALE AND
DORR LLP, Washington, D.C., for Amici American College of
Obstetricians and Gynecologists and American Medical
Association. Shannon Rose Selden, Courtney M. Dankworth,
DEBEVOISE & PLIMPTON LLP, New York, New York, for Amicus
American Public Health Association.
3
WILKINSON, Circuit Judge:
At issue here is a North Carolina statute that requires
physicians to perform an ultrasound, display the sonogram, and
describe the fetus to women seeking abortions. A physician must
display and describe the image during the ultrasound, even if
the woman actively “avert[s] her eyes” and “refus[es] to hear.”
N.C. Gen. Stat. § 90-21.85(b). This compelled speech, even
though it is a regulation of the medical profession, is
ideological in intent and in kind. The means used by North
Carolina extend well beyond those states have customarily
employed to effectuate their undeniable interests in ensuring
informed consent and in protecting the sanctity of life in all
its phases. We thus affirm the district court’s holding that
this compelled speech provision violates the First Amendment.
I.
In July 2011, the North Carolina General Assembly passed
the Woman’s Right to Know Act over a gubernatorial veto. The Act
amended Chapter 90 of the North Carolina General Statutes, which
governs medical and related professions, adding a new article
regulating the steps that must precede an abortion.
Physicians and abortion providers filed suit after the
Act’s passage but before its effective date, asking the court to
enjoin enforcement of the Act and declare it unconstitutional.
In October 2011, the district court issued a preliminary
4
injunction barring enforcement of one provision of the Act, the
Display of Real-Time View Requirement (“the Requirement”),
codified at N.C. Gen. Stat. § 90-21.85. J.A. 143-44. The court
subsequently allowed the plaintiffs to amend their complaint.
The Third Amended Complaint asserted that the Display of Real-
Time View Requirement violated the physicians’ First Amendment
free speech rights and the physicians’ and the patients’
Fourteenth Amendment due process rights. J.A. 282. 1
The Display of Real-Time View Requirement obligates doctors
(or technicians) to perform an ultrasound on any woman seeking
an abortion at least four but not more than seventy-two hours
before the abortion is to take place. N.C. Gen. Stat. § 90-
21.85(a)(1). The physician must display the sonogram so that the
woman can see it, id. § 90-21.85(a)(3), and describe the fetus
in detail, “includ[ing] the presence, location, and dimensions
of the unborn child within the uterus and the number of unborn
children depicted,” id. § 90-21.85(a)(2), as well as “the
presence of external members and internal organs, if present and
viewable,” id. § 90-21.85(a)(4). The physician also must offer
1
The Third Amended Complaint also challenged both the
Display of Real-Time View Requirement and the Informed Consent
to Abortion provision, N.C. Gen. Stat. § 90-21.82, as
unconstitutionally vague. J.A. 281. The parties and the district
court agreed on savings constructions so that the Act was not
void for vagueness, and the plaintiffs did not appeal that
ruling. Stuart v. Loomis, 992 F. Supp. 2d 585, 611 (M.D.N.C.
2014) (district court opinion).
5
to allow the woman to hear the fetal heart tone. Id. § 90-
21.85(a)(2). The woman, however, may “avert[] her eyes from the
displayed images” and “refus[e] to hear the simultaneous
explanation and medical description” by presumably covering her
eyes and ears. Id. § 90-21.85(b).
The Act provides an exception to these requirements only in
cases of medical emergency. Id. § 90-21.86. Physicians who
violate the Act are liable for damages and may be enjoined from
providing further abortions that violate the Act in North
Carolina. Id. § 90-21.88. Violation of the Act also may result
in the loss of the doctor’s medical license. See id. § 90-
14(a)(2) (The North Carolina Medical Board may impose
disciplinary measures, including license revocation, upon a
doctor who “[p]roduc[es] or attempt[s] to produce an abortion
contrary to law.”).
Not at issue in this appeal are several other informed
consent provisions to which physicians, independently of the
Display of Real-Time View Requirement, are subject. The first is
the informed consent provision of the Act itself. Id. § 90-
21.82. It requires that, at least twenty-four hours before an
abortion is to be performed, a doctor or qualified professional
explain to the woman seeking the abortion the risks of the
procedure, the risks of carrying the child to term, “and any
adverse psychological effects associated with the abortion.” Id.
6
§ 90-21.82(1)(b), (d). The physician must also convey the
“probable gestational age of the unborn child,” id. § 90-
21.82(1)(c), that financial assistance for the pregnancy may be
available, that the father of the child is obligated to pay
child support, and that there are alternatives to abortion, id.
§ 90-21.82(2)(a)-(d). Furthermore, the doctor must inform the
woman that she can view on a state-sponsored website materials
published by the state which describe the fetus. The doctor must
also give or mail the woman physical copies of the materials if
she wishes, and must “list agencies that offer alternatives to
abortion.” Id. § 90-21.82(2)(e).
Before this Act, physicians were still subject to North
Carolina’s general informed consent requirements when conducting
abortions. See id. § 90-21.13(a); 10A N.C. Admin. Code
14E.0305(a); Appellees’ Br. 6. Prior to its enactment, the
physicians challenging the Act claim they were “inform[ing] each
patient about the nature of the abortion procedure, its risks
and benefits, and the alternatives available to the patient and
their respective risks and benefits” and “counsel[ing] the
patient to ensure that she was certain about her decision to
have an abortion.” Appellees’ Br. 6.
Both parties moved for summary judgment. Applying
heightened, intermediate scrutiny, Stuart v. Loomis, 992 F.
Supp. 2d 585, 600-01 (M.D.N.C. 2014), the district court held
7
that the Display of Real-Time View Requirement violated the
physicians’ First Amendment rights to free speech. Id. at 607-
09. It thus granted the plaintiffs’ motion for summary judgment
and entered a permanent injunction. Id. at 610-11. The court
declined to reach the merits of the due process claim, finding
it moot in light of the court’s ruling on the First Amendment
claim. Id. at 611. 2
We review a grant of summary judgment de novo. S.
Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d 560,
562 (4th Cir. 2014). In so doing, we view the facts in the light
most favorable to the state. Moore-King v. Cnty. of
Chesterfield, Va., 708 F.3d 560, 566 (4th Cir. 2013).
II.
A.
“Congress shall make no law . . . abridging the freedom of
speech.” U.S. Const. amend. I. This concept sounds simple, but
proves more complicated on closer inspection. Laws that impinge
upon speech receive different levels of judicial scrutiny
depending on the type of regulation and the justifications and
purposes underlying it. On the one hand, regulations that
2
After the district court’s order granting the preliminary
injunction, several individuals and pregnancy counseling centers
moved to intervene as defendants. The district court denied the
motion, Stuart v. Huff, 2011 WL 6740400 (M.D.N.C. Dec. 22,
2011), and this court affirmed, Stuart v. Huff, 706 F.3d 345(4th Cir. 2013).
8
discriminate against speech based on its content “are
presumptively invalid,” R.A.V. v. City of St. Paul, Minn., 505
U.S. 377, 382 (1992), and courts usually “apply the most
exacting scrutiny,” Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 642 (1994); see also United States v. Playboy Entm’t Grp.,
Inc., 529 U.S. 803, 814 (2000). On the other hand, “area[s]
traditionally subject to government regulation,” such as
commercial speech and professional conduct, typically receive a
lower level of review. Cent. Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm’n of N.Y., 447 U.S. 557, 562-63 (1980) (regulation of
commercial speech); see also Keller v. State Bar of Cal., 496
U.S. 1, 13-16 (1990) (regulation of legal profession).
We thus must first examine the type of regulation at issue
to determine the requisite level of scrutiny to apply. Turner,
512 U.S. at 637 (explaining that “because not every interference
with speech triggers the same degree of scrutiny under the First
Amendment, we must decide at the outset the level of scrutiny
applicable”). As we do, we are mindful of “the First Amendment’s
command that government regulation of speech must be measured in
minimums, not maximums.” Riley v. Nat’l Fed’n of the Blind of
N.C., Inc., 487 U.S. 781, 790 (1988).
The physicians urge us to find that the regulation must
receive strict scrutiny because it is content-based and
ideological. See Appellees’ Br. 36-40. The state counters that
9
the Requirement must be treated as a regulation of the medical
profession in the context of abortion and thus subject only to
rational basis review. See Appellants’ Br. 7-15, 20-28. The
district court chose a different path. Recognizing that the
Requirement both compelled speech and regulated the medical
profession, the court applied neither strict scrutiny nor
rational basis review, but rather the intermediate scrutiny
standard normally used for certain commercial speech
regulations. See Stuart v. Loomis, 992 F. Supp. 2d 585, 598-601
(M.D.N.C. 2014). For the reasons outlined below, we agree with
the district court that the Requirement is a content-based
regulation of a medical professional’s speech which must satisfy
at least intermediate scrutiny to survive.
B.
The Display of Real-Time View Requirement regulates both
speech and conduct. The physician must convey the descriptions
mandated by the statute in his or her own voice. The sonogram
display is also intimately connected with the describing
requirement. The two are thus best viewed as a single whole. In
deciding whether an activity “possesses sufficient communicative
elements to bring the First Amendment into play, we have asked
whether ‘[a]n intent to convey a particularized message was
present, and [whether] the likelihood was great that the message
would be understood by those who viewed it.’” Texas v. Johnson,
10
491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S.
405, 410–11 (1974)). The state’s avowed intent and the
anticipated effect of all aspects of the Requirement are to
discourage abortion or at the very least cause the woman to
reconsider her decision. See Appellants’ Br. 29-32. The clear
import of displaying the sonogram in this context -- while the
woman who has requested an abortion is partially disrobed on an
examination table -- is to use the visual imagery of the fetus
to dissuade the patient from continuing with the planned
procedure. If the state’s intent is to convey a distinct
message, the message does not lose its expressive character
because it happens to be delivered by a private party. Whether
one agrees or disagrees with the state’s approach here cannot be
the question. In this context, the display of the sonogram is
plainly an expressive act entitled to First Amendment
protection. See, e.g., John Doe No. 1 v. Reed, 561 U.S. 186,
194-95 (2010) (recognizing First Amendment protections for
signing a referendum petition); Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495, 501-02 (1952) (commercial film).
The First Amendment not only protects against prohibitions
of speech, but also against regulations that compel speech.
“Since all speech inherently involves choices of what to say and
what to leave unsaid, one important manifestation of the
principle of free speech is that one who chooses to speak may
11
also decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Grp. of Bos., 515 U.S. 557, 573 (1995) (citations
omitted) (internal quotation marks omitted); see also Wooley v.
Maynard, 430 U.S. 705, 714 (1977) (“[T]he First Amendment . . .
includes both the right to speak freely and the right to refrain
from speaking at all.”). A regulation compelling speech is by
its very nature content-based, because it requires the speaker
to change the content of his speech or even to say something
where he would otherwise be silent. Riley, 487 U.S. at 795(“Mandating speech that a speaker would not otherwise make
necessarily alters the content of the speech.”); Centro Tepeyac
v. Montgomery Cnty., 722 F.3d 184, 189 (4th Cir. 2013) (en banc)
(same). Compelled speech is particularly suspect because it can
directly affect listeners as well as speakers. Listeners may
have difficulty discerning that the message is the state’s, not
the speaker’s, especially where the “speaker [is] intimately
connected with the communication advanced.” Hurley, 515 U.S. at
576.
The Requirement is quintessential compelled speech. It
forces physicians to say things they otherwise would not say.
Moreover, the statement compelled here is ideological; it
conveys a particular opinion. The state freely admits that the
purpose and anticipated effect of the Display of Real-Time View
Requirement is to convince women seeking abortions to change
12
their minds or reassess their decisions. See Appellants’ Br. 29-
32.
It may be true, as the Fifth Circuit has noted, that “the
required disclosures . . . are the epitome of truthful, non-
misleading information.” Tex. Med. Providers Performing Abortion
Servs. v. Lakey, 667 F.3d 570, 577-78 (5th Cir. 2012). But an
individual’s “right to tailor [his] speech” or to not speak at
all “applies . . . equally to statements of fact the speaker
would rather avoid.” Hurley, 515 U.S. at 573; see also Sorrel v.
IMS Health Inc., 131 S. Ct. 2653, 2667 (2011); Turner, 512 U.S.
at 645; Riley, 487 U.S. at 797-98. 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. “[C]ontext matters.” Greater Balt. Ctr. for
Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 286
(4th Cir. 2013) (en banc). Of course we need not go so far as to
say that every required description of a typical fetus is in
every context ideological. But this Display of Real-Time View
Requirement explicitly promotes a pro-life message by demanding
the provision of facts that all fall on one side of the abortion
debate -- and does so shortly before the time of decision when
the intended recipient is most vulnerable.
The state protests that the Requirement does not dictate a
specific script and that the doctor is free to supplement the
13
information with his own opinion about abortion. Reply Br. 14-
16. That is true; the state does not demand that the doctor use
particular words. But that does not mean that the Requirement is
“not designed to favor or disadvantage speech of any particular
content.” Turner, 512 U.S. at 652. In fact, the clear and
conceded purpose of the Requirement is to support the state’s
pro-life position. That the doctor may supplement the compelled
speech with his own perspective does not cure the coercion --
the government’s message still must be delivered (though not
necessarily received).
Content-based regulations of speech typically receive
strict scrutiny. Id. at 642. The state, however, maintains that
the Requirement is merely a regulation of the practice of
medicine that need only satisfy rational basis review. We turn
now to that contention. 3
C.
The state’s power to prescribe rules and regulations for
professions, including medicine, has an extensive history. See
3
Plaintiffs seem to suggest that the Display of Real-Time
View Requirement constitutes viewpoint discrimination and that
we should strike the provision down on that basis. See
Appellees’ Br. 2, 54. Because we find that the Requirement fails
even intermediate scrutiny, infra Part III, it is unnecessary
for us to definitively determine whether the compelled speech
here requires strict scrutiny. See Greater Balt., 721 F.3d at
288 (cautioning against “precipitately concluding that the
[provision] is an exercise of viewpoint discrimination”).
14
Dent v. West Virginia, 129 U.S. 114, 122 (1889) (“[I]t has been
the practice of different states, from time immemorial, to exact
in many pursuits a certain degree of skill and learning upon
which the community may confidently rely.”). Licensing and
regulation by the state “provide clients with the confidence
they require to put their health or their livelihood in the
hands of those who utilize knowledge and methods with which the
clients ordinarily have little or no familiarity.” King v. Gov.
of N.J., 767 F.3d 216, 232 (3d Cir. 2014). The state may
establish licensing qualifications, Dent, 129 U.S. at 122,
oblige the payment of dues to a professional organization for
purposes such as “disciplining members” and “proposing ethical
codes,” Keller, 496 U.S. at 16, and even set standards for the
conduct of professional activities, Barsky v. Bd. of Regents of
Univ. of State of N.Y., 347 U.S. 442, 449-50 (1954). In the
medical context, the state may require the provision of
information sufficient for patients to give their informed
consent to medical procedures, see Canterbury v. Spence, 464
F.2d 772, 781 (D.C. Cir. 1972), and patients may seek damages
when doctors fail to follow statutory and professionally
recognized norms, see, e.g, N.C. Gen. Stat. § 90-21.88. Simply
put, “[t]he power of government to regulate the professions is
not lost whenever the practice of a profession entails speech.”
15
Lowe v. SEC, 472 U.S. 181, 228 (1985) (White, J., concurring in
the judgment).
But that does not mean that individuals simply abandon
their First Amendment rights when they commence practicing a
profession. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 884 (1992) (plurality opinion) (“[T]he physician’s First
Amendment rights not to speak are implicated.” (emphasis
added)); Lowe, 472 U.S. at 229-30 (White, J., concurring in the
judgment) (“But the principle that the government may restrict
entry into professions and vocations through licensing schemes
has never been extended to encompass the licensing of speech per
se or of the press.”). To the contrary, “speech is speech, and
it must be analyzed as such for purposes of the First
Amendment.” King, 767 F.3d at 229. There are “many dimensions”
to professionals’ speech. Fla. Bar v. Went For It, Inc., 515
U.S. 618, 634 (1995). And “[t]here are circumstances in which we
will accord speech by attorneys on public issues and matters of
legal representation the strongest protection our Constitution
has to offer.” Id. With all forms of compelled speech, we must
look to the context of the regulation to determine when the
state’s regulatory authority has extended too far. Riley, 487
U.S. at 796.
When the First Amendment rights of a professional are at
stake, the stringency of review thus slides “along a continuum”
16
from “public dialogue” on one end to “regulation of professional
conduct” on the other. Pickup v. Brown, 740 F.3d 1208, 1227,
1229 (9th Cir. 2013) (emphasis in original). Other circuits have
recently relied on the distinction between professional speech
and professional conduct when deciding on the appropriate level
of scrutiny to apply to regulations of the medical profession.
See King, 767 F.3d at 224-29, 233-37; Wollschlaeger v. Gov. of
Fla., 760 F.3d 1195, 1217-25 (11th Cir. 2014).
The Display of Real-Time View Requirement resides somewhere
in the middle on that sliding scale. It is a regulation of
medical treatment insofar as it directs doctors to do certain
things in the context of treating a patient. In that sense, the
government can lay claim to its stronger interest in the
regulation of professional conduct. But that is hardly the end
of the matter. The government’s regulatory interest is less
potent in the context of a self-regulating profession like
medicine. Moore-King v. Cnty. of Chesterfield, Va., 708 F.3d
560, 570 (4th Cir. 2013). Moreover, the Requirement is a clearly
content-based regulation of speech; it requires doctors to “say”
as well as “do.” As the district court found, the confluence of
these factors points toward borrowing a heightened intermediate
scrutiny standard used in certain commercial speech cases.
Stuart, 992 F. Supp. 2d at 600. Thus, we need not conclusively
determine whether strict scrutiny ever applies in similar
17
situations, because in this case “the outcome is the same
whether a special commercial speech inquiry or a stricter form
of judicial scrutiny is applied.” Sorrel, 131 S. Ct. at 2667.
D.
Insofar as our decision on the applicable standard of
review differs from the positions taken by the Fifth and Eighth
Circuits in cases examining the constitutionality of abortion
regulations under the First Amendment, we respectfully disagree.
Both courts relied heavily on a single paragraph in Casey:
All that is left of petitioners' argument is an
asserted First Amendment right of a physician not to
provide information about the risks of abortion, and
childbirth, in a manner mandated by the State. To be
sure, the physician's First Amendment rights not to
speak are implicated, see Wooley v. Maynard, 430 U.S.
705 (1977), but only as part of the practice of
medicine, subject to reasonable licensing and
regulation by the State, cf. Whalen v. Roe, 429 U.S.
589, 603 (1977). We see no constitutional infirmity in
the requirement that the physician provide the
information mandated by the State here.
505 U.S. at 884; see also Lakey, 667 F.3d at 574-76; Planned
Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889, 893 (8th
Cir. 2012) (en banc) (“Rounds II”); Planned Parenthood Minn.,
N.D., S.D. v. Rounds, 530 F.3d 724, 733-35 (8th Cir. 2008) (en
banc) (“Rounds I”). That is the sum of the First Amendment
analysis in Casey.
In considering an ultrasound display-and-describe
requirement similar to the one at issue here, the Fifth Circuit
18
interpreted Casey as employing “the antithesis of strict
scrutiny.” Lakey, 667 F.3d at 575. It further noted that in
Gonzales v. Carhart, the Supreme Court “upheld a state’s
‘significant role . . . in regulating the medical profession.’”
Lakey, 667 F.3d at 575-76 (quoting Gonzales v. Carhart, 550 U.S.
124, 157 (2007)). Therefore, the Lakey court reasoned,
provisions such as the one at issue here -- that is, laws that
“require truthful, nonmisleading, and relevant disclosures,” id.at 576 -- “do not fall under the rubric of compelling
‘ideological’ speech that triggers First Amendment strict
scrutiny,” id. The Eighth Circuit similarly drew from Casey and
Gonzales the rule that the First Amendment permits the state to
“use its regulatory authority to require a physician to provide
truthful, non-misleading information relevant to a patient’s
decision to have an abortion.” Rounds I, 530 F.3d at 734-35; see
also Rounds II, 686 F.3d at 893.
With respect, our sister circuits read too much into Casey
and Gonzales. The single paragraph in Casey does not assert that
physicians forfeit their First Amendment rights in the
procedures surrounding abortions, nor does it announce the
proper level of scrutiny to be applied to abortion regulations
that compel speech to the extraordinary extent present here. The
plurality opinion stated that the medical profession is “subject
to reasonable licensing and regulation by the State” and that
19
physicians’ speech is “part of the practice of medicine.” Casey,
505 U.S. at 884. But the plurality did not hold sweepingly that
all regulation of speech in the medical context merely receives
rational basis review. Rather, having noted the physicians’
First Amendment rights and the state’s countervailing interest
in regulating the medical profession, the plurality simply
stated that it saw “no constitutional infirmity in the
requirement that the physician provide the information mandated
by the State here.” Id. (emphasis added). That particularized
finding hardly announces a guiding standard of scrutiny for use
in every subsequent compelled speech case involving abortion.
Furthermore, the Fifth and Eighth Circuits’ reliance on
Gonzales seems inapposite. Gonzales was not a First Amendment
case; the plaintiffs there did not bring free speech claims. See
Carhart v. Ashcroft, 331 F. Supp. 2d 805, 814 (D. Neb. 2004);
Planned Parenthood Fed’n of Am. v. Ashcroft, 320 F. Supp. 2d
957, 967 (N.D. Cal. 2004). Thus Gonzales does not elucidate the
First Amendment standard applied in Casey. Gonzales provides
valuable insight into the relationship between the state and the
medical profession and the role the state may play in ensuring
that women are properly informed before making what is
indisputably a profound choice with permanent and potentially
harmful impacts. See infra Part III. But it says nothing about
the level of scrutiny courts should apply when reviewing a claim
20
that a regulation compelling speech in the abortion context
violates physicians’ First Amendment free speech rights. The
fact that a regulation does not impose an undue burden on a
woman under the due process clause does not answer the question
of whether it imposes an impermissible burden on the physician
under the First Amendment. A heightened intermediate level of
scrutiny is thus consistent with Supreme Court precedent and
appropriately recognizes the intersection here of regulation of
speech and regulation of the medical profession in the context
of an abortion procedure. 4
III.
Under an intermediate standard of scrutiny, the state bears
the burden of demonstrating “at least that the statute directly
advances a substantial governmental interest and that the
measure is drawn to achieve that interest.” Sorrel v. IMS Health
Inc., 131 S. Ct. 2653, 2667-68 (2011). This formulation seeks to
“ensure not only that the State's interests are proportional to
the resulting burdens placed on speech but also that the law
4
The state’s amici insist that the decision we reach today
will permit future litigants to use the First Amendment “as a
‘trump card’ in a multitude of challenges to abortion
regulations, allowing abortion proponents to provoke a ‘back-
door,’ strict scrutiny approach” that will override Casey’s
undue burden standard. Law Professors’ Br. 27. We think this
concern is overdrawn. The great majority of abortion regulations
do not compel anyone’s speech, and the great majority of
litigants do not raise First Amendment concerns.
21
does not seek to suppress a disfavored message.” Id. at 2668.
The court can and should take into account the effect of the
regulation on the intended recipient of the compelled speech,
especially where she is a captive listener. See Hill v.
Colorado, 530 U.S. 703, 716-18 (2000); Va. State Bd. of Pharmacy
v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756-57
(1976); Greater Balt. Ctr. For Pregnancy Concerns, Inc. v. Mayor
of Balt., 721 F.3d 264, 286 (4th Cir. 2013) (en banc); cf. Lee
v. Weisman, 505 U.S. 577, 598 (1992).
The protection of fetal life, along with the companion
interests of protecting the pregnant woman’s psychological
health and ensuring that “so grave a choice is well informed,”
Gonzales, 550 U.S. at 159, is undeniably an important state
interest. The Supreme Court has repeatedly affirmed the state’s
“important and legitimate interest” in preserving, promoting,
and protecting fetal life. Roe v. Wade, 410 U.S. 113, 162 (1973)
(quoted in Casey, 505 U.S. at 871); see also Gonzales, 550 U.S.
at 145. We shall presume for the purpose of this appeal that
this statute protects fetal life by increasing the likelihood
that a woman will not follow through on the decision to have an
abortion. Nonetheless, the means used to promote a substantial
state interest must be drawn so as to directly advance the
interest without impeding too greatly on individual liberty
interests or competing state concerns. Sorrel, 131 S. Ct. at
22
2667-68. The means employed here are far-reaching -- almost
unprecedentedly so -- in a number of respects and far outstrip
the provision at issue in Casey. See Casey, 505 U.S. at 881.
This statutory provision interferes with the physician’s right
to free speech beyond the extent permitted for reasonable
regulation of the medical profession, while simultaneously
threatening harm to the patient’s psychological health,
interfering with the physician’s professional judgment, and
compromising the doctor-patient relationship. We must therefore
find the Display of Real-Time View Requirement unconstitutional.
A.
Before addressing the provision’s constitutional
infirmities, it is well worth identifying briefly the various
state interests at stake in this case. As we noted above, the
Supreme Court has forcefully reiterated that the state’s
interest in protecting fetal life is important and profound.
This interest derives from the state’s general interest in
protecting and promoting respect for life, and has been
recognized in abortion decisions without number. See, e.g.,
Gonzales, 550 U.S. at 158; Casey, 505 U.S. at 871; Greenville
Women’s Clinic v. Bryant, 222 F.3d 157, 165-66 (4th Cir. 2000).
We do not question the substantial state interest at work here.
As part of its general interest in promoting the health of
its citizens, the state also has an interest in promoting the
23
psychological health of women seeking abortions. Appellants’ Br.
17. The state may seek to protect women both from the
psychological harm of “com[ing] to regret their choice,”
Gonzales, 550 U.S. at 159, as well as the psychological harm
from the process of obtaining an abortion itself. The Supreme
Court has also recognized a state interest in maintaining “the
integrity and ethics of the medical profession,” which includes
promoting a healthy doctor-patient relationship, Washington v.
Glucksberg, 521 U.S. 702, 731 (1997); see also Gonzales, 550
U.S. at 157, and respecting physicians’ professional judgment,
see Casey, 505 U.S. at 884.
However, that important state interests are implicated in
the abortion context is only the starting point for our
analysis. Though physicians and other professionals may be
subject to regulations by the state that restrict their First
Amendment freedoms when acting in the course of their
professions, professionals do not leave their speech rights at
the office door. See Lowe v. SEC, 472 U.S. 181, 229-30 (1985)
(White, J., concurring in the judgment). Any state regulation
that limits the free speech rights of professionals must pass
the requisite constitutional test. The Display of Real-Time View
Requirement must directly advance an important state interest in
a manner that is drawn to that interest and proportional to the
burden placed on the speech. See Sorrel, 131 S. Ct. at 2667-68.
24
B.
North Carolina contends that the Display of Real-Time View
Requirement is merely “reasonable . . . regulation by the State”
of the medical profession that does not violate the physicians’
First Amendment rights any more than informed consent
requirements do. Appellants’ Br. 22-25 (quoting Tex. Med.
Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 575
(5th Cir. 2012) (quoting Casey, 505 U.S. at 882)). The
requirements the provision imposes on physicians, however,
resemble neither traditional informed consent nor the variation
found in the Pennsylvania statute at issue in Casey. The North
Carolina statute goes much further, imposing additional burdens
on the physicians’ free speech and risking the compromise of
other important state interests.
Traditional informed consent requirements derive from the
principle of patient autonomy in medical treatment. Grounded in
self-determination, obtaining informed consent prior to medical
treatment is meant to ensure that each patient has “the
information she needs to meaningfully consent to medical
procedures.” Am. Coll. of Obstetricians & Gynecologists & the
Am. Med. Ass’n (“ACOG & AMA”) Br. 5; see also AMA, Op. 8.08 –
Informed Consent (2006). As the term suggests, informed consent
consists of two essential elements: comprehension and free
consent. ACOG & AMA Br. 7; ACOG, Comm. Op. No. 439 - Informed
25
Consent, at 2 (2012). Comprehension requires that the physician
convey adequate information about the diagnosis, the prognosis,
alternative treatment options (including no treatment), and the
risks and likely results of each option. ACOG & AMA Br. 7; ACOG,
Comm. Op. No. 439, at 3, 5; see also J.A. 359 (declaration of
Dr. Anne Drapkin Lyerly); Canterbury v. Spence, 464 F.2d 772,
780-81 (D.C. Cir. 1972). Physicians determine the “adequate”
information for each patient based on what a reasonable
physician would convey, what a reasonable patient would want to
know, and what the individual patient would subjectively wish to
know given the patient’s individualized needs and treatment
circumstances. ACOG, Comm. Op. No. 439, at 5. Free consent, as
it suggests, requires that the patient be able to exercise her
autonomy free from coercion. Id. at 3, 5. It may even include at
times the choice not to receive certain pertinent information
and to rely instead on the judgment of the doctor. Id. at 7;
ACOG & AMA Br. 8. The physician’s role in this process is to
inform and assist the patient without imposing his or her own
personal will and values on the patient. J.A. 359-60
(declaration of Dr. Anne Drapkin Lyerly); ACOG, Comm. Op. No.
439, at 3. The informed consent process typically involves a
conversation between the patient, fully clothed, and the
physician in an office or similar room before the procedure
begins. ACOG & AMA Br. 8, 23; ACOG, Comm. Op. No. 439, at 4.
26
Once the patient has received the information she needs, she
signs a consent form, and treatment may proceed. See, e.g., N.C.
Gen. Stat. § 90-21.13(b).
The Pennsylvania statute challenged in Casey prescribes a
modified form of informed consent for abortions. To provide
informed consent, the statute first requires the physician to
orally inform the woman of the nature of the abortion procedure,
the “risks and alternatives to the procedure . . . that a
reasonable patient would consider material to the decision”
whether to have an abortion, the risks of carrying the child to
term, and the “probable gestational age of the unborn child”
when the abortion is to be performed. 18 Pa. Cons. Stat.
§ 3205(a)(1). The physician must give this information at least
twenty-four hours prior to the abortion. Id. Aside from the
gestational age of the fetus, this information is the same type
that would be required under traditional informed consent for
any medical procedure.
The statute continues on, however, to require that the
physician must inform the woman, at least twenty-four hours in
advance, that the state prints materials that describe the
unborn child, and a copy must be provided to her if she wants
it. 18 Pa. Cons. Stat. § 3205(a)(2)-(3). Finally, the statute
requires the physician to provide some additional information
about financial and other assistance that may be available from
27
the state and the father. 18 Pa. Cons. Stat. § 3205(a)(2). These
provisions deviate only modestly from traditional informed
consent. They also closely resemble the informed consent
provisions of North Carolina’s Woman’s Right to Know Act that
are not under challenge in this appeal. N.C. Gen. Stat. § 90-
21.82(1)-(2). The challenged Display of Real-Time View
Requirement, N.C. Gen. Stat. § 90-21.85, however, reaches beyond
the modified form of informed consent that the Court approved in
Casey. In so doing, it imposes a virtually unprecedented burden
on the right of professional speech that operates to the
detriment of both speaker and listener.
C.
The burdens trace in part from deviations from the
traditions of informed consent. The most serious deviation from
standard practice is requiring the physician to display an image
and provide an explanation and medical description to a woman
who has through ear and eye covering rendered herself
temporarily deaf and blind. This is starkly compelled speech
that impedes on the physician’s First Amendment rights with no
counterbalancing promotion of state interests. The woman does
not receive the information, so it cannot inform her decision.
In fact, “[t]he state’s own expert witness agrees that the
delivery of the state’s message in these circumstances does not
provide any information to the patient and does not aid
28
voluntary and informed consent.” Stuart v. Loomis, 992 F. Supp.
2d 585, 602 (M.D.N.C. 2014). And while having to choose between
blindfolding and earmuffing herself or watching and listening to
unwanted information may in some remote way influence a woman in
favor of carrying the child to term, forced speech to unwilling
or incapacitated listeners does not bear the constitutionally
necessary connection to the protection of fetal life. Moreover,
far from promoting the psychological health of women, this
requirement risks the infliction of psychological harm on the
woman who chooses not to receive this information. She must
endure the embarrassing spectacle of averting her eyes and
covering her ears while her physician -- a person to whom she
should be encouraged to listen -- recites information to her. We
can perceive no benefit to state interests from walling off
patients and physicians in a manner antithetical to the very
communication that lies at the heart of the informed consent
process.
The constitutional burden on the physicians’ expressive
rights is not lifted by having a willing listener. The
information the physician had to convey orally in Casey was no
more than a slight modification of traditional informed consent
disclosures. The information conveyed here in the examining room
more closely resembles the materials that in Casey were provided
by the state in a pamphlet. Casey, 505 U.S. at 881. A physician
29
in Pennsylvania need only inform the patient that such
information is available and, if requested, provide her with a
copy of the state-issued pamphlet. 18 Pa. Cons. Stat.
§ 3205(a)(2)(i) & (a)(3). Informing a patient that there are
state-issued materials available is not ideological, because the
viewpoint conveyed by the pamphlet is clearly the state’s -- not
the physician’s. It is no wonder then that the Casey court found
no First Amendment infirmities in that requirement. By contrast,
the North Carolina statute compels the physician to speak and
display the very information on a volatile subject that the
state would like to convey. See N.C. Gen. Stat. § 90-
21.85(a)(2)-(4). The coercive effects of the speech are
magnified when the physician is compelled to deliver the state’s
preferred message in his or her own voice. This Requirement
treads far more heavily on the physicians’ free speech rights
than the state pamphlet provisions at issue in Casey.
Though the information conveyed may be strictly factual,
the context surrounding the delivery of it promotes the
viewpoint the state wishes to encourage. As a matter of policy,
the state may certainly express a preference for childbirth over
abortion, Webster v. Reprod. Health Servs., 492 U.S. 490, 511
(1989), and use its agents and written materials to convey that
message. However the state cannot commandeer the doctor-patient
relationship to compel a physician to express its preference to
30
the patient. As the district court noted, “[b]y requiring
providers to deliver this information to a woman who takes steps
not to hear it or would be harmed by hearing it, the state has
. . . moved from ‘encouraging’ to lecturing, using health care
providers as its mouthpiece.” Stuart, 992 F. Supp. 2d at 609.
Transforming the physician into the mouthpiece of the state
undermines the trust that is necessary for facilitating healthy
doctor-patient relationships and, through them, successful
treatment outcomes. See Am. Pub. Health Ass’n (“APHA”) Br. 9-10.
The patient seeks in a physician a medical professional with the
capacity for independent medical judgment that professional
status implies. The rupture of trust comes with replacing what
the doctor’s medical judgment would counsel in a communication
with what the state wishes told. It subverts the patient’s
expectations when the physician is compelled to deliver a state
message bearing little connection to the search for professional
services that led the patient to the doctor’s door.
Furthermore, by failing to include a therapeutic privilege
exception, the Display of Real-Time View Requirement interferes
with the physician’s professional judgment and ethical
obligations. The absence of a therapeutic exception means that
the state has sought not only to control the content of the
physician’s speech, but to dictate its timing. Under the
Requirement, the physician must display and describe the fetus
31
simultaneously with the ultrasound procedure, and he must do
this at least four and not more than seventy-two hours prior to
the abortion procedure. See N.C. Gen. Stat. § 90-21.85(a).
Therapeutic privilege, however, permits physicians to decline or
at least wait to convey relevant information as part of informed
consent because in their professional judgment delivering the
information to the patient at a particular time would result in
serious psychological or physical harm. ACOG, Comm. Op. 439, at
7. It is an important privilege, albeit a limited one to be used
sparingly. See id. It protects the health of particularly
vulnerable or fragile patients, and permits the physician to
uphold his ethical obligations of benevolence.
The Casey court found it relevant that the Pennsylvania
statute contained a therapeutic exception so that it “does not
prevent the physician from exercising his or her medical
judgment.” 505 U.S. at 883-84. North Carolina by contrast
requires the physician to “[d]isplay the images” and “[p]rovide
a simultaneous explanation of what the display is depicting”
along with “a medical description of the images,” with no
exception. N.C. Gen. Stat. § 90-21.85(a)(2)-(4). The lack of a
provision similar to Pennsylvania’s in North Carolina’s statute
runs contrary to the state’s interest in “protecting the
integrity and ethics of the medical profession,” Gonzales, 550
U.S. at 157, and more generally to its interest in the
32
psychological and physical well-being of the affected women.
Particularly for women who have been victims of sexual assaults
or whose fetuses are nonviable or have severe, life-threatening
developmental abnormalities, having to watch a sonogram and
listen to a description of the fetus could prove psychologically
devastating. See J.A. 332-33 (declaration of Dr. Gretchen S.
Stuart); Appellees’ Br. 12-13; APHA Br. 8-9. Requiring the
physician to provide the information regardless of the
psychological or emotional well-being of the patient, see N.C.
Gen. Stat. §§ 90-21.85 & 90-21.86, can hardly be considered
closely drawn to those state interests the provision is supposed
to promote.
In sum, though the State would have us view this provision
as simply a reasonable regulation of the medical profession,
these requirements look nothing like traditional informed
consent, or even the versions provided for in Casey and in N.C.
Gen. Stat. § 90-21.82. As such, they impose an extraordinary
burden on expressive rights. The three elements discussed so far
-- requiring the physician to speak to a patient who is not
listening, rendering the physician the mouthpiece of the state’s
message, and omitting a therapeutic privilege to protect the
health of the patient -- markedly depart from standard medical
practice.
D.
33
Other aspects of the Requirement are equally unusual. As
described above, informed consent frequently consists of a
fully-clothed conversation between the patient and physician,
often in the physician’s office. It is driven by the “patient’s
particular needs and circumstances,” J.A. 388 (declaration of
Dr. Amy Weil), so that the patient receives the information he
or she wants in a setting that promotes an informed and
thoughtful choice.
This provision, however, finds the patient half-naked or
disrobed on her back on an examination table, with an ultrasound
probe either on her belly or inserted into her vagina.
Appellees’ Br. 13; APHA Br. 8. Informed consent has not
generally been thought to require a patient to view images from
his or her own body, ACOG & AMA Br. 7, much less in a setting in
which personal judgment may be altered or impaired. Yet this
provision requires that she do so or “avert[] her eyes.” N.C.
Gen. Stat. § 90-21.85(a)(3), (b). Rather than engaging in a
conversation calculated to inform, the physician must continue
talking regardless of whether the patient is listening. See
Stuart, 992 F. Supp. 2d at 590 & 602 n.34. The information is
provided irrespective of the needs or wants of the patient, in
direct contravention of medical ethics and the principle of
patient autonomy. “[F]orcing this experience on a patient over
her objections” in this manner interferes with the decision of a
34
patient not to receive information that could make an
indescribably difficult decision even more traumatic and could
“actually cause harm to the patient.” J.A. 330 (declaration of
Dr. Gretchen S. Stuart). And it is intended to convey not the
risks and benefits of the medical procedure to the patient’s own
health, but rather the full weight of the state’s moral
condemnation. Though the state is plainly free to express such a
preference for childbirth to women, it is not the function of
informed consent to require a physician to deliver the state’s
preference in a setting this fraught with stress and anxiety.
There are few absolutes in the difficult area of
professional regulation and professional expression. But there
do exist constraints on the permissible interference with the
doctor-patient relationship; there are limits on state attempts
to compel physicians to deliver its message, especially when
that message runs counter to the physician’s professional
judgment and the patient’s autonomous decision about what
information she wants. Though states may surely enact
legislation to ensure that a woman’s choice is informed and
thoughtful when she elects to have an abortion, states cannot so
compromise physicians’ free speech rights, professional
judgment, patient autonomy, and other important state interests
in the process. The means here exceed what is proper to promote
the undeniably profound and important purpose of protecting
35
fetal life. See, e.g., Sorrel, 131 S. Ct. at 2667-68, 2670(holding that Vermont statute unconstitutionally burdened speech
because “[w]hile Vermont’s stated policy goals may be proper,
§ 4631(d) does not advance them in a permissible way” under
intermediate scrutiny).
IV.
“The right to speak and the right to refrain from speaking
are complementary components of the broader concept of
‘individual freedom of mind.’” Wooley v. Maynard, 430 U.S. 705,
714 (1977) (quoting W. Va. State Bd. of Educ. v. Barnette, 319
U.S. 624, 637 (1943)). Regulations which compel ideological
speech “pose the inherent risk that the Government seeks not to
advance a legitimate regulatory goal, but to suppress unpopular
ideas or information or manipulate the public debate through
coercion rather than persuasion.” Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 641 (1994). Abortion may well be a special
case because of the undeniable gravity of all that is involved,
but it cannot be so special a case that all other professional
rights and medical norms go out the window. While the state
itself may promote through various means childbirth over
abortion, it may not coerce doctors into voicing that message on
behalf of the state in the particular manner and setting
attempted here. The district court did not err in concluding
that § 90-21.85 of the North Carolina General Statutes violates
36
the First Amendment and in enjoining the enforcement of that
provision. Its judgment is in all respects affirmed.
AFFIRMED
37