CATHERINE C. EAGLES, District Judge.
In 2011, North Carolina imposed new requirements on health care providers who treat patients seeking abortions. The Woman's Right to Know Act ("the Act"), codified at N.C. Gen.Stat. §§ 90-21.80 through 90-21.92, sets forth the information physicians and other health care providers
Plaintiffs — several North Carolina physicians and health care providers — brought this action on behalf of themselves and their patients challenging the constitutionality of parts of the Act. Defendants are various North Carolina government agents sued in their official capacities, which the
The Supreme Court has never held that a state has the power to compel a health care provider to speak, in his or her own voice, the state's ideological message in favor of carrying a pregnancy to term, and this Court declines to do so today. To the extent the Act is an effort by the state to require health care providers to deliver information in support of the state's philosophic and social position discouraging abortion and encouraging childbirth, it is content-based, and it is not sufficiently narrowly tailored to survive strict scrutiny. Otherwise, the state has not established that the speech-and-display provision directly advances a substantial state interest in regulating health care, especially when the state does not require the patient to receive the message and the patient takes steps to avoid receipt of the message. Thus, it does not survive heightened scrutiny.
Because the speech-and-display provision violates Plaintiffs' First Amendment rights, enforcement of this provision must be enjoined. Plaintiffs' due process claim is thus moot. Finally, the Court agrees with the parties' proposed constructions of certain disputed provisions, so that the Act is not void as vague.
In their initial complaint, Plaintiffs contended that the Act violated their constitutional rights in a number of ways. They immediately moved for a preliminary injunction based on First Amendment and vagueness arguments. The Court found that Plaintiffs were likely to succeed on the merits of their First Amendment compelled speech claims related to the speech-and-display provision, granted Plaintiffs' motion in part, and enjoined Defendants from enforcing the speech-and-display provision. See Stuart v. Huff, 834 F.Supp.2d 424 (M.D.N.C.2011); (CM-ECF Docs. 40, 66.) The Court denied the motion as to Plaintiffs' vagueness arguments, and the remainder of the Act became effective on October 28, 2011.
After the Court enjoined part of the Act, several individuals sought to intervene as defendants in the action. The Court denied their motion. Stuart v. Huff, No. 1:11-cv-804, 2011 WL 6740400 (M.D.N.C. Dec. 22, 2011). The Fourth Circuit affirmed. Stuart v. Huff, 706 F.3d 345 (4th Cir.2013).
After a period of discovery, Plaintiffs filed a Second Amended Complaint which narrowed their claims. (Doc. 75.) Their First Amendment, due process, and vagueness claims remain. The parties have each moved for summary judgment.
Summary judgment is proper when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). When both parties move for summary judgment, "the court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003) (internal quotation marks omitted). In reviewing each motion, the court should "resolve all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion." Id. (internal quotation marks omitted).
Plaintiffs contend that the speech-and-display provision violates their First
Defendants disagree both as to this standard of review and as to the outcome. While they admit the provision compels speech, they contend that it compels health care providers to give abortion patients truthful, non-misleading, and relevant information sufficient to satisfy the deferential standard they contend the Supreme Court established in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). In the alternative, Defendants argue that the speech is commercial, triggering intermediate scrutiny, or, again in the alternative, that the Act passes constitutional muster even applying strict scrutiny.
In support of their motion, Plaintiffs rely on the declarations of seven physicians, (Docs. 107-112, 115), testimony from the state's expert, (Docs. 113-1, 133-1), and the declaration of one woman who underwent an abortion. (Doc. 114.) In support of their motion, Defendants rely on the report of the state's expert, (Doc. 117-1), and on affidavits from three women who had abortions, originally submitted by non-parties in support of their motion to intervene.
The Court concludes that the material facts are undisputed and that summary judgment is appropriate.
The Act requires an ultrasound at least four and no more than seventy-two hours before an abortion. N.C. Gen.Stat. § 90-21.85(a). During this ultrasound procedure, the patient must lie on an examination table where she either (i) exposes the lower portion of her abdomen, or (ii) is naked from the waist down, covered only by a drape. (Doc. 107 at ¶ 13; see also Doc. 110 at ¶ 10; Doc. 111 at ¶ 10.) Depending on the stage of pregnancy, the provider (i) inserts an ultrasound probe into the patient's vagina, or (ii) places an ultrasound probe on her abdomen.
The Act provides that "[n]othing in this section shall be construed to prevent a pregnant woman from averting her eyes from the displayed images or from refusing to hear the simultaneous explanation and medical description." Id. § 90-21.85(b). If the patient does not want to see the ultrasound images or hear the description and explanation concerning the ultrasound images, the provider may give the patient eye blinders and headphones so that, as a practical matter, she may avoid seeing the ultrasound images and/or hearing the fetal heartbeat and the description of the ultrasound images. (See Doc. 113-1 at 6; Doc. 133-2 at 3-4; see also Doc. 107 at ¶¶ 31-32; Doc. 110 at ¶¶ 21-22; Doc. 111 at ¶ 18.) However, providers must comply with the speech-and-display requirements regardless, even if (i) the patient wears blinders and earphones and cannot see or hear the message; (ii) they believe that acting over the patient's objection will harm the patient or violate medical ethics; or (iii) doing so is contrary to their medical judgment. (See Doc. 107 at ¶¶ 22-24, 42, 46; Doc. 108 at ¶ 11; Doc. 109 at ¶ 16; Doc. 110 at ¶ 14; Doc. 111 at ¶ 14; Doc. 112 at ¶ 12); see also N.C. Gen.Stat. § 90-21.85(a).
A woman who does not watch or listen to the real-time display and description can still give informed consent to an abortion. See N.C. Gen.Stat. §§ 90-21.82, 90-21.85(b). When a provider displays and describes ultrasound images to patients who take steps to avoid seeing the images or hearing the description, the quality of informed consent is not improved and no medical purpose is served. (See Doc. 107 at ¶¶ 23, 30-32, 42; Doc. 110 at ¶¶ 20-22; Doc. 111 at ¶¶ 16-19; Doc. 113-1 at 7-8, 11; Doc. 115 at ¶¶ 20-21.)
Abortion is a very safe medical procedure. (Doc. 107 at ¶ 47; Doc. 110 at ¶¶ 4, 27; Doc. 111 at ¶ 4.) In North Carolina, only a licensed physician may perform a surgical abortion, and a licensed physician must be present when a patient undergoes a chemically induced abortion. See N.C. Gen.Stat. § 90-21.82(1)(a). Women seek abortions for a variety of reasons, including but not limited to the health of the woman or fetus. (Doc. 107 at ¶¶ 6, 8; Doc. 110 at ¶ 5; Doc. 111 at ¶ 5.) The vast majority of abortions in North Carolina occur during the first trimester of pregnancy. (Doc. 111 at ¶ 6.) As is true nation-wide, approximately half of North Carolina women obtaining abortions already have at least one child. (Doc. 107 at ¶ 19.)
Since 1994, the North Carolina Department of Health and Human Services has required by regulation an ultrasound for any patient who is scheduled for an abortion procedure. See 10A N.C. Admin. Code 14E.0305(d). These same regulations require a written consent form to be voluntarily signed by the patient, which signature must be witnessed and also signed by the physician performing the procedure. Id. at 14E.0305(a).
All physicians in North Carolina have ethical duties to their patients,
All physicians in North Carolina, including those who provide abortions, must also comply with statutory requirements for informed consent or face civil liability to their patients. Health care providers must comply with "the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities" when they obtain informed consent. N.C. Gen.Stat. § 90-21.13(a)(1). Providers must also give patients information sufficient to give a reasonable person "a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities." Id. § 90-21.13(a)(2).
If, however, a patient chooses not to consider some information, that is a choice the physician should ordinarily respect; the American College Of Obstetricians and Gynecologists, for example, has advised physicians that a patient's refusal of information is "itself an exercise of choice, and its acceptance can be part of respect for the patient's autonomy" and "[i]mplicit in the ethical concept of informed consent is the goal of maximizing a patient's freedoms." Comm. on Ethics, Am. Coll. of Obstetricians & Gynecologists, Comm. Op. # 439: Informed Consent 7 (2009, reaffirmed 2012) (cited by Plaintiffs' expert, (Doc. 108 at ¶ 13); state's expert was a committee member, (see Doc. 117-1 at p. 9)) (distinguishing a patient's refusal of information from other exceptions to disclosure requirements).
Regardless of the Act, standard medical practice for abortion in North Carolina requires a provider to discuss with the patient, among other things, the nature of the procedure, the procedure's risks and benefits, and alternatives available to the patient, along with their respective risks and benefits. (See Doc. 107 at ¶¶ 10, 19, 45; Doc. 108 at ¶ 14; Doc. 110 at ¶ 6; Doc. 111 at ¶ 7.) It also involves asking patients if they want to view the ultrasound images, showing the images if the patient wants to see them, and answering questions about the ultrasound. (See Doc. 107 at ¶¶ 14, 21-22, 26; Doc. 108 at ¶ 21; Doc. 110 at ¶¶ 11, 15; Doc. 111 at ¶¶ 12, 15.) In the absence of the Act, Plaintiffs would not offer to display and describe ultrasound images to some patients who are at risk of significant psychological harm, (see Doc. 107 at ¶¶ 28-29, 36-39; Doc. 110 at ¶¶ 16-19; Doc. 111 at ¶¶ 14-15, 20-23; Doc. 112 at ¶ 18; Doc. 115 at ¶¶ 15-19), and Plaintiffs would not display and describe the images to any patient seeking an abortion unless the patient requested it. (See Doc. 107 at ¶¶ 14, 20-22, 26; Doc. 108 at ¶ 21; Doc. 110 at ¶¶ 11, 15; Doc. 111 at ¶¶ 9, 15; Doc. 112 at ¶¶ 13-14, 19; Doc. 115 at ¶ 20.)
Thus, the parties agree that even in the absence of the Act, it is appropriate for providers to offer the information required by the speech-and-display provision to almost all patients and to provide the information to all patients who want to hear and see it. The dispute in this case therefore centers on whether the state can compel providers to deliver the state's message to women who do not want to hear it or who are at risk of significant psychological harm from receiving it.
The First Amendment generally prohibits the government from requiring people to speak its messages. See Agency for Int'l, Dev. v. Alliance for Open Soc'y Int'l, Inc., ___ U.S. ___, ___, 133 S.Ct. 2321, 2327, 186 L.Ed.2d 398 (2013); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796-97, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). Because "[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech," speech compelled by the government
Despite the apparent absolute nature of these rules, courts have recognized certain areas of compelled speech to which strict scrutiny does not apply. One common area exempt from strict scrutiny is compelled commercial speech, which is "expression related solely to the economic interests of the speaker and its audience."
The Supreme Court does not necessarily apply rational basis review every time the government compels speech in the context of professional advertising. "Unjustified or unduly burdensome disclosure requirements," for example, "offend the First Amendment." Id. at 250, 130 S.Ct. 1324. The Court has evaluated some restrictions and prohibitions on professional advertising under intermediate scrutiny, see In re R.M.J., 455 U.S. 191, 203-07, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982), and others under strict scrutiny. See NAACP v. Button, 371 U.S. 415, 438-40, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
Moreover, the commercial speech doctrine is less likely to apply when the speech regulation at issue is content-based. For example, in Riley, the Supreme Court considered a First Amendment challenge to a statute requiring professional fundraisers to disclose to potential donors the percentage of charitable contributions collected
Similarly, in Sorrell v. IMS Health Inc., the Supreme Court held that a state statute that prohibited pharmaceutical manufacturers from using prescriber-identifying information for marketing was First Amendment-protected expression that must be subject to "heightened judicial scrutiny." ___ U.S. ___, ___, 131 S.Ct. 2653, 2659, 180 L.Ed.2d 544 (2011). Even though the statute regulated commercial speech, the Court applied heightened scrutiny in striking it down because it was content-based; its express purpose was "to diminish the effectiveness of marketing by manufacturers of brand-name drugs." Id. at ___, 131 S.Ct. at 2663-64.
Outside of the advertising context, it has long been recognized that the state can require licenses and impose reasonable regulations on professions which require "a certain degree of skill and learning upon which the community may confidently rely." Dent v. West Virginia, 129 U.S. 114, 122, 9 S.Ct. 231, 32 L.Ed. 623 (1889). In Dent, the Supreme Court upheld a state law prohibiting the practice of medicine without a license, holding that a state may require a license so long as it is "appropriate to the calling or profession, and attainable by reasonable study or application." Id. at 121-22, 9 S.Ct. 231; see also Watson v. Maryland, 218 U.S. 173, 176, 30 S.Ct. 644, 54 L.Ed. 987 (1910). Similarly, in Keller v. State Bar of California, the Supreme Court held that the state may require lawyers to belong to an organized bar that expended dues to fund activities germane to the profession because of its interests in regulating the profession and improving the quality of legal services.
In a variety of contexts, the Supreme Court has acknowledged the government's
States have also long required health care providers to give patients information they need to make informed decisions about medical treatment. See, e.g., Canterbury, 464 F.2d at 781 ("The cases demonstrate that the physician is under an obligation to communicate specific information to the patient when the exigencies of reasonable care call for it.").
In fact, the Fourth Circuit recently intimated that where professionals are accredited and licensed, the state has a lower interest in compelling their speech. See Moore-King v. Cnty. of Chesterfield, 708 F.3d 560, 570 (4th Cir.2013). In Moore-King, the Fourth Circuit upheld a regulation requiring professional fortune tellers to obtain and pay for licenses, finding no First Amendment violation. Id. at 569-70. The court noted that "[w]ith respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary." Id. at 570.
In the health care context specifically, the Ninth Circuit recently reiterated that "doctor-patient communications about medical treatment receive substantial First Amendment protection." Pickup, 728 F.3d at 1053 (emphasis omitted).
The Ninth Circuit in Pickup was guided by two of its earlier speech cases. Id. at 1051-52. In NAAP, the Court held that California's psychology licensing scheme did not violate the First Amendment, as it was content- and viewpoint-neutral and did not "dictate what can be said between psychologists and patients during treatment." 228 F.3d at 1054-56. The Pickup court contrasted NAAP with Conant v. Walters, in which the Ninth Circuit applied strict scrutiny to a federal policy declaration that a doctor's recommendation or prescription of medical marijuana would lead to revocation of the doctor's registration to prescribe controlled substances. 309 F.3d 629, 639 (9th Cir.2002). The court recognized that "[b]eing a member of a regulated profession does not, as the government suggests, result in a surrender of First Amendment rights," and concluded that the content- and viewpoint-based policy was not sufficiently narrowly tailored. Id. at 637, 639; see Pickup, 728 F.3d at 1056.
It is also clear that a state's regulation of professional speech must be consistent with the goals and duties of the profession. In Legal Services Corp. v. Velazquez, for example, the Supreme Court expressed concern about a statute that interfered with traditional professional relationships by restricting the kind of professional advice a lawyer could give. 531 U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001). The Court found that regulations which prohibited federally-funded legal aid attorneys from advising clients about potential constitutional claims violated the First Amendment, noting that "[r]estricting ... attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys." Id. at 544, 121 S.Ct. 1043. Likewise, in Milavetz, the Court narrowly construed the statute at issue so as to avoid any concerns that the statute would inhibit "frank discussion" between attorney and client. 559 U.S. at 246, 130 S.Ct. 1324. Courts have been careful to insure that the regulation at issue was in fact directed at the state's purported interest in the profession. See Keller, 496 U.S. at 14, 110 S.Ct. 2228; Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 768, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (discounting state's interest in improving standards of pharmacists where disclosure had more to do with retail sales than with professional standards).
As a review of these authorities makes clear, whether, when, and to what extent the government can compel speech by a professional cannot be established with hard and fast rules. See Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972) ("First Amendment rights must always be applied `in light of the special characteristics of the ... environment' in the particular case." (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969))); Moore-King, 708
The speech-and-display provision compels speech by providers because it requires them, over their objection, to show the real-time display and to describe what can be seen to every single patient, regardless of the patient's wishes and individual medical needs. The state not only compels the delivery of the message in all situations, but it also compels the content of the message (the display and the verbal description of the physical features of the fetus, if any), the format of the message (in the physician's own voice and on a screen the provider sets to face the patient), exactly where the information must be delivered (in the examining room), and when it must be delivered (in the middle of a medical procedure while the patient is disrobed and, for women in very early stages of pregnancy, while she has a probe in her vagina, at least four hours but no more than seventy-two hours before the abortion). See N.C. Gen.Stat. § 90-21.85(a). By delivering the information in this way, providers appear to have adopted the state's message, and patients are likely to assume that the provider's speech delivered during a medical procedure conveys ideas and messages the provider endorses and has deemed "worthy of presentation." Hurley, 515 U.S. at 575, 115 S.Ct. 2338. (See Doc. 107 at ¶ 24; Doc. 111 at ¶ 17; Doc. 115 at ¶ 21); see also Jennifer M. Keighley, Physician Speech & Mandatory Ultrasound Laws: The First Amendment's Limit on Compelled Ideological Speech, 34 Cardozo L.Rev. 2347, 2374 (2013) ("Because of the fiduciary relationship between physicians and their patients, patients are likely to place significant value on the physicians' speech about a medical procedure.").
To the extent the speech-and-display provision requires providers to deliver a message designed to persuade women not to terminate a pregnancy, which the state forthrightly acknowledges is one of its purposes,
The state contends that the speech-and-display provision is related to medical care so that, consistent with the state's traditional authority to regulate medical care, a lower standard of scrutiny should apply. Plaintiffs appear to dismiss this argument completely, contending that strict scrutiny always applies when the state compels content-based speech. Yet Plaintiffs' approach overlooks the state's historic interest in the health and safety of its citizens, which the state may protect through reasonable regulation of the medical profession, including compelled speech consistent with professional norms. See discussion supra Part I.C.
Nonetheless, the talismanic recitation that the state has the authority to license and regulate health care providers does not mean much merely by being invoked. See Button, 371 U.S. at 429, 83 S.Ct. 328 ("[A] State cannot foreclose the exercise of constitutional rights by mere labels."); see also Edenfield v. Fane, 507 U.S. 761, 770, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (holding that the fact that a state accounting board's interests in maintaining ethical standards "are substantial in the abstract does not mean, however, that [the prohibition at issue] serves them"). The Court cannot disregard the state's express ideological interest in determining what level of scrutiny to apply, even if it is only one of several interests at play.
Even though the speech at issue is obviously not commercial,
The state contends the speech-and-display provision aids its interest in persuading women to opt for childbirth over abortion,
The state's interests in protecting fetal health and insuring voluntary and informed consent are valid state interests. The state has made cogent arguments that information about the physical characteristics of the fetus conveyed as a result of the speech-and-display provision could be helpful and relevant to some patients considering abortion. (See Doc. 118 at 20.) And the state has offered some evidence to support this view. In a 2002 study cited by the state's expert, (Doc. 117-1 at p. 6 ¶ 5), researchers determined that most women who were offered and accepted the opportunity to look at the ultrasound before an abortion viewed it "in a positive light, that it would help them to make a better choice." A.A. Bamigboye et al., Issues in Medicine: Should Women View the Ultrasound Image Before First-Trimester Termination of Pregnancy, 92-6 S. Afr. Med. J. 430, 432 (2002). Other studies outside the abortion context indicate that visual aids can be helpful in making medical decisions. (See Doc. 117-1 at p. 5 ¶ 3 (collecting articles).)
This evidence, however, is not directed to the speech actually compelled by the Act. The speech-and-display provision does not merely require providers to offer the real-time display and description to every patient, as the cited research indicates would be helpful.
It is this compelled speech to which Plaintiffs object.
The statute at issue in Casey also explicitly contained a therapeutic exception which did not "require a physician to comply with the informed consent provisions `if he or she can demonstrate by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient.'" 505 U.S. at 883-84, 112 S.Ct. 2791. Thus, it did not "prevent the physician from exercising his or her medical judgment." Id. at 884, 112 S.Ct. 2791.
The state has offered no real defense of this one-size-fits-all requirement, and the only evidence the state presents about psychological harm does not contradict Plaintiffs' evidence. The state's expert information "simply because it might cause temporary stress or anxiety," and further testified that he is "not aware of any evidence that patients will be harmed by the provision of information." (Doc. 117-1 at p. 6 ¶ 5.) He does not address or even mention those patients who have individual risk factors for more profound psychological problems.
Plaintiffs have presented undisputed evidence that compelled delivery of the state's message in these situations would raise serious ethical issues and be inconsistent with the purposes of the informed consent rule. (See Doc. 107 at ¶¶ 24, 27, 31, 38, 42-43, 46-50; Doc. 108 at ¶¶ 11-12, 17, 22-23, 30; Doc. 109 at ¶¶ 13, 15-22; Doc. 110 at ¶¶ 15, 19, 22; Doc. 111 at ¶¶ 14-17, 22.) It is a basic precept of medical ethics that physicians are charged with the duties to not inflict harm on patients and to exercise their medical judgment and discretion. See discussion supra Part I.B.
Consistent with rules of medical ethics summarized above, even the state's expert emphasizes that "there can obviously be no rigid prescription" as to what a patient medically and ethically should be told, (Doc. 117-1 at p. 6 ¶ 4 (quotation marks omitted)), and that an individual approach to patients is generally required. (See Doc. 113-1 at 12; see also id. at 4 (agreeing physicians should have discretion to choose how they obtain informed consent).) Further, he agrees that informed consent procedures "must be free of coercion," should be "designed to facilitate the capacity of rational beings to make judgments of what they consider best, rather than what the physician or any other person might consider best for them," and should be free
The state attempts to justify the compelled speech with the contention that showing a woman her own fetus and describing it to her is the best way for the state to express its interest in promoting life, as it has the effect of encouraging the woman "to engage in a moment of reflection about her decision whether to terminate her pregnancy — and the gravity of that decision." (Doc. 118 at 26.) But the speech-and-display provision is not the state's expression of its own message promoting childbirth and discouraging abortion. Rather, it compels a health care provider to act as the state's courier and to disseminate the state's message discouraging abortion, in the provider's own voice, in the middle of a medical procedure, and under circumstances where it would seem the message is the provider's and not the state's. This is not allowed under the First Amendment. See Wooley, 430 U.S. at 716, 97 S.Ct. 1428 ("[W]here the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message."). While "[t]he government may use its voice and its regulatory authority to show its profound respect for the life within the woman," Gonzales, 550 U.S. at 128, 127 S.Ct. 1610 (emphasis added), the Supreme Court has never held that the government may use a professional's voice to do the same. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (stating that when the government speaks for itself, it "may make content-based choices," but that "[i]n the realm of private speech or expression, government regulation may not favor one speaker over another"); Riley, 487 U.S. at 804, 108 S.Ct. 2667 (Scalia, J., concurring) ("[I]t is safer to assume that the people are smart enough to get the information they need than to assume that the government is wise or impartial enough to make the judgment for them."). The state "does not have a compelling interest in each marginal percentage point by which its goals are advanced." Brown, ___ U.S. at ___, 131 S.Ct. at 2741 n. 9.
Defendants also contend that the speech-and-display requirement furthers the state's interest in promoting voluntary and informed consent by making women aware of the extent of fetal development, by protecting women's psychological health by ensuring that women are fully informed before making an irreversible decision that they may come to regret,
This argument is undermined by the very structure of the Act, which does not
Further, the state has not shown that the speech-and-display provision is necessary to alleviate a real harm. The state offers no evidence that psychological harm caused by learning of the fetus's physical characteristics after an abortion is substantial either in numbers or degree, nor is there evidence that the compelled disclosures ameliorate any such harm, especially when they are not received.
The state's contention that the provision prevents coercive abortions is completely unclear. To the extent Defendants contend that providers are coercing abortions, the argument rests, at least in part, on an assumption that health care providers do not fulfill their legal and ethical duties to obtain informed consent or, worse, actively coerce patients to undergo abortions. There is no evidence before the Court that either of these things is true, even in small measure.
Even assuming provider-coerced abortion is a real and not theoretical harm, the state has not shown that the speech-and-display provision is directed at alleviating this harm. If a provider is already in the habit of unethically and illegally coercing abortions, in violation of unquestionably valid informed consent law and ethical rules, the addition of the speech-and-display provision will not deter him or her
To the extent Defendants contend that third-parties, such as boyfriends, husbands, or parents, are coercing abortions, Defendants have not provided any evidence that the speech-and-display provision is directed at preventing such coercion. Even under intermediate scrutiny, the government's burden is heavy, see Rubin v. Coors Brewing Co., 514 U.S. 476, 487, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995), and the state cannot carry it here with mere conjecture or speculation. Id.; cf. WV Ass'n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 305-06 (2009) (noting in the commercial speech context that "restrictions must not be more extensive than necessary" and that where a state has a comprehensive scheme to serve its interest, limitations on commercial speech should "complement non-speech alternatives," not serve as substitutes for them).
Even assuming the speech-and-display provision actually reduces the risk of psychological harm or of coercive abortion, it burdens substantially more speech than necessary. See Turner Broad., 512 U.S. at 662, 114 S.Ct. 2445. There are many other ways to provide the necessary information to patients without hijacking the provider's voice in the middle of a medical procedure. The Act, generally applicable informed consent law, and established medical practices in North Carolina ensure that women are informed several times in several ways of the availability of information about fetal development and that it is easily available to those women who believe it will be helpful to their decision-making. See discussion supra, n. 36. The Act requires that its informed consent disclosures be provided to the woman "individually," and in a manner that ensures that "the woman is not the victim of a coerced abortion." N.C. Gen.Stat. § 90-21.90(a). It further requires the provider to inform the patient that she has other alternatives to abortion and that she is "free to withhold or withdraw her consent to the abortion at any time." N.C. Gen.Stat. § 90-21.82(2)(d), (2)(f). The uncontradicted evidence is that providers in the state consider it to be part of the standard of care to offer women the opportunity to view the ultrasound and to ensure that women are not being coerced before they perform an abortion. (See Doc. 107 at ¶¶ 14, 21-22, 26; Doc. 108 at ¶¶ 16, 21; Doc. 110 at ¶¶ 11, 15; Doc. 111 at ¶¶ 12, 15.)
In short, the state's arguments do nothing to avoid the First Amendment issues raised by compelling providers to speak the state's message to women who refuse to hear it or who would be harmed by it. Indeed, those arguments increase the First Amendment concerns, given the lack of empirical evidence for the supposed health interests put forth, the conflicts with established rules of medical ethics, and the admitted non-medical and value-based motives behind the Act. With no provision for a therapeutic exception or for a different method of delivery to women at serious risk of harm and with no evidence of any benefit from delivering the message to women who refuse to listen to it, the Act does not directly or indirectly advance any of the proffered state interests and is not drawn to achieve a substantial state interest. It undermines well-established professional norms in the medical field, without empirical justification. It does not survive heightened scrutiny.
Casey does not compel a different analysis. The state contends that Casey stands for the proposition that if a statute compels physicians to convey truthful, non-misleading, and relevant information to patients, then it does not constitute an undue burden on the woman's right to choose and, ipso facto, it passes First Amendment muster. The state also points to two federal courts of appeals cases which employed the undue burden test to uphold compelled disclosure laws in the abortion context against First Amendment challenges. See Lakey, 667 F.3d 570; Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir.2012) ("Rounds II"); 653 F.3d 662 (8th Cir. 2011) ("Rounds I").
In the due process context, Casey provides an exhaustive and detailed analysis of the reasons the state may regulate abortion providers and the ways in which such regulation is permissible under the Fourteenth Amendment. Casey does not provide a similarly detailed analysis on the way to evaluate such laws under the First Amendment. Rather, Casey refers to the state's ability to license and regulate the practice of medicine, contrasts it to the state's inability to compel ideological speech, and concludes there is no "constitutional infirmity in the requirement that the physician provide the information mandated by the State here." Casey, 505 U.S. at 884, 112 S.Ct. 2791 (emphasis added).
Despite its brevity, the First Amendment analysis is clearly a traditional one, couched by its reference to Wooley in terms of compelled speech and by its reference to the state's ability to regulate the practice of medicine in terms of professional speech. Casey did not purport to carve out a new First Amendment exception or create a new standard of review for all abortion-related speech cases. See Brown, ___ U.S. at ___, 131 S.Ct. at 2734-38 (declining to carve out novel First Amendment exception for violent video games); United States v. Stevens, 559 U.S. 460, 468-72, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (same for depictions of animal cruelty); see also Pruitt v. Nova Health Sys., ___ U.S. ___, 134 S.Ct. 617, 187 L.Ed.2d 400 (2013) (denying certiorari from Oklahoma Supreme Court case holding similar statute unconstitutional under Casey).
Nowhere else in First Amendment law is the state's effort to compel speech evaluated by determining whether the compelled speech violates a different constitutional right, much less a different constitutional right belonging to a different person. Such an interpretation of Casey would be inconsistent with decades of First Amendment case law and would ignore the values memorialized in the First Amendment.
With due respect, Lakey and Rounds are wrongly decided. They are not grounded in traditional First Amendment principles, from which Casey did not diverge. They read Casey as creating, in two sentences, an entirely new category of abortion-related compelled speech to which a unique standard of review applies. The application of a due process standard to a First Amendment issue improperly conflates two separate constitutional doctrines in a way that gives short shrift to the First Amendment.
Under Defendants' test, the state can compel providers to speak so long as the information is truthful, not misleading, and relevant. As discussed above, the Act by its terms says that the information is not necessary or relevant to every woman's decision, and other provisions make sure that women are aware of the availability of the information if she wants to receive it. It is standard medical practice in North Carolina to provide the information upon request. Yet if a woman permissibly decides the information is not relevant to her, or indeed would be harmful to her, she must still be physically present, undressed or half-undressed on an examining table, while the provider is compelled to deliver the state's message, a message which, by the Act's own terms, is not necessary for informed consent. Indeed, the state would have a physician attempt to persuade a woman not to have an abortion by showing and describing any physical characteristics against the woman's will, even if she will die if she continues her pregnancy and even if she has a mental health history that makes forced and graphic delivery of this information in the middle of a medical procedure a risky proposition for her.
Instead of a "reasonable framework" within which a woman makes the decision about terminating a pregnancy, see Casey, 505 U.S. at 873, 112 S.Ct. 2791, the speech-and-display provision is more like an unyielding straightjacket. It goes well beyond "encourag[ing the pregnant woman] to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term" and "taking steps to ensure that [her] choice is thoughtful and informed." Id. at 872, 112 S.Ct. 2791. By 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 erected an obstacle and has moved from "encouraging" to lecturing, using health care providers as its mouthpiece. See Riley, 487 U.S. at 804, 108 S.Ct. 2667 (Scalia, J., concurring). As discussed above, there is no health reason for requiring the disclosure to women who take steps not to hear it or would be harmed by hearing it, making this an "unnecessary health regulation[]" which is not allowed under Casey. See 505 U.S. at 878, 112 S.Ct. 2791.
For the foregoing reasons, the one-size-fits-all speech-and-display provision violates Plaintiffs' First Amendment rights. The Act requires providers to deliver the state's message to women who take steps not to hear it and to women who will be harmed by receiving it with no legitimate purpose. Thus, it is overbroad, and it does not directly advance the state's interests in reducing psychological harm to women or in increasing informed and voluntary consent. To the extent the Act requires providers to deliver the state's
At the preliminary injunction stage, Defendants agreed that the requirements of the speech-and-display provision rise and fall together. Now, in two sentences and without explanation, Defendants request that the Court enjoin the enforcement of only the first sentence of § 90-21.85(a)(2) and § 90-21.85(a)(4) in the alternative to enjoining the speech-and-display provision in its entirety. (Doc. 118 at 31-32.) It is not clear how the remaining provisions of § 90-21.85 would function in the absence of subsections (a)(2) and (a)(4), and the Defendants essentially ask the Court to rewrite the statute so that it is constitutional. (Doc. 159 at 51-52.) The Court declines the invitation.
Plaintiffs also contend that N.C. Gen. Stat. § 90-21.85 violates substantive due process. As an initial matter, Defendants argue that Plaintiffs lack standing to challenge the Act on due process grounds to the extent they seek to do so on behalf of their patients. Generally, "even when the plaintiff has alleged injury sufficient to meet the `case or controversy' [standing] requirement, ... the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
Under the doctrine of third-party standing, however, a plaintiff may assert the rights of another with whom the plaintiff has a "close" relationship if there is a "`hindrance' to the possessor's ability to protect his own interests." Kowalski v. Tesmer, 543 U.S. 125, 129-30, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004). The Supreme Court has "been quite forgiving with these criteria in certain circumstances," including those in which the "enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties' rights." Id. at 130, 125 S.Ct. 564 (quotation marks omitted). A plurality of the Supreme Court and several courts of appeal have allowed physicians and providers to assert their patients' constitutional right to an abortion. See, e.g., Singleton v. Wulff, 428 U.S. 106, 118, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Aid for Women v. Foulston, 441 F.3d 1101, 1112 (10th Cir.2006); Planned Parenthood of N. New England v. Heed, 390 F.3d 53, 56 n. 2 (1st Cir.2004), vacated on other grounds, 546 U.S. 320, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006); Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 916-18 (9th Cir. 2004); N.Y. State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1346-48 (2d Cir. 1989).
Plaintiffs here satisfy both prongs of the test for third-party standing. Plaintiff physicians and providers and their patients have a sufficiently close relationship in the abortion context that Plaintiffs "can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal." Sec'y of State v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Further, women seeking abortions face genuine obstacles to litigation. A woman's interest in the privacy of her decision may keep her from coming forward to present her own case. Furthermore, a woman seeking to assert her due process right to an abortion faces "imminent mootness"
Plaintiffs contend that the Act's speech-and-display provision violates substantive due process because it is irrational. Due process requires that all laws at a minimum be "rationally related to a legitimate governmental objective." Multimedia Publ'g Co. of S.C. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 159 (4th Cir.1993). Having already struck down the Act's speech-and-display provision, the Court declines to reach this issue beyond its holdings on the First Amendment issue, denying both parties' motions on this ground as moot.
Finally, Plaintiffs contend that the Act is void as vague. In response, Defendants urge the Court to adopt savings constructions to eliminate any alleged vagueness. Plaintiffs agree with Defendants' proposed constructions. Specifically, the parties agree that (1) the term "advanced practice nurse practitioner in obstetrics" included in the definition of qualified technician, N.C. Gen.Stat. § 90-21.81(9), should be defined as "a nurse practitioner who is certified in obstetrical ultrasonography," (Doc. 118 at 11; Doc. 127 at 28); (2) the seventy-two-hour exception, N.C. Gen.Stat. § 90-21.85(a), should be construed as permitting an alternative means of compliance by which a physician other than the provider may perform an ultrasound and complete the required certification within seventy-two hours before the abortion, (Doc. 118 at 11-12; Doc. 127 at 28-29.); (3) a physician or qualified professional may provide the information in section 90-21.82(1), but a physician must "be available to ask and answer questions within the statutory timeframe upon request of the patient or the qualified professional," (Doc. 106 at 35 (citing Stuart, 834 F.Supp.2d at 435)); and (4) the Act imposes no criminal penalties. (Doc. 106 at 34; Doc. 118 at 13.)
A law is void for vagueness where people of "common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). However, "[w]here fairly possible, courts should construe a statute to avoid a danger of unconstitutionality." Planned Parenthood Ass'n of Kansas City v. Ashcroft, 462 U.S. 476, 493, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983). The Court's reading of the challenged provisions is the same as the parties', such that the Act is not void as vague. See, e.g., W.Va. Mfrs. Ass'n v. West Virginia, 714 F.2d 308, 314 (4th Cir.1983) (finding statute not void for vagueness where "[t]he meaning of its language is discoverable from the context"). Further, as the Court concludes that the speech-and-display provision is unconstitutional, any challenge to the seventy-two-hour exception is moot.
For the foregoing reasons, both parties' motions for summary judgment, (Docs. 105, 117), will be granted in part and denied in part. A permanent injunction and final judgment will follow.
