Stuart v. Camnitz

774 F.3d 238

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.

No. 14–1150.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 29, 2014.

Decided: Dec. 22, 2014.

Held Unconstitutional

West's N.C.G.S.A. § 90–21.85(b)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.

Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge TRAXLER and Judge DUNCAN joined.

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 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 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.§ 90–21.82(1)(b), (d). The physician must also convey the “probable gestational age of the unborn child,” id. § 9021.82(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...