Creative jurisprudence 101

 

 

 

 

The abortion lobby, worried about the effect of a new NC state law on their government cash cow,  shopped around and found a federal judge to say what they wanted her to say:

A federal judge on Tuesday blocked the most controversial part of the state’s abortion-restriction law, which goes into effect today: the requirement that patients be presented with a narrated ultrasound image of their womb within four hours of the operation.

U.S. District Court Judge Catherine Eagles granted a request for a preliminary injunction sought by several national and state civil-rights organizations that sued late last month. Eagles upheld all other provisions of the law, at least until the lawsuit is resolved.

Eagles ruled the ultrasound requirement is likely an unconstitutional violation of the First Amendment. The rights groups argued that the provision amounted to using women’s bodies as virtual billboards to promote government-mandated ideology.

The judge wrote in her order, “The First Amendment generally includes the right to refuse to engage in speech compelled by the government,” and she added that freedom of speech precludes limits on “both what to say and what not to say.”

Katy Parker, legal director for the ACLU of North Carolina Legal Foundation, one of the plaintiffs, said the law would have put medical providers on uncertain legal ground and harmed women. “The state should not be using women’s bodies as political pawns, as this law clearly seeks to do,” Parker said.

Rep. Paul “Skip” Stam, a Republican from Apex who was a strong backer of the legislation, said he was disappointed.

“It is unfortunate that the abortion industry, embodied by the plaintiffs in this case, is so opposed to a woman meeting her child before deciding to terminate her pregnancy,” Stam said.

The legislator said he was glad other parts of the law were upheld, including a 24-hour waiting period and the requirement that women be given extensive medical information.

The law, called A Woman’s Right to Know Act, requires the state to provide resources for women seeking abortions, including places where they can obtain free ultrasounds. That information will go online at wrtk.ncdhhs.gov/ today, according to the state Department of Health and Human Services.

Eagles ruled that her free-speech finding trumped the other legal issues raised by the defense. Although she acknowledged other parts of the provision were written in a way that was “not a model of clarity,” she ruled it was not impermissibly vague.

“The Supreme Court has historically taken a dim view of content-based speech compelled by the government,” the judge wrote.

Eagles cited Supreme Court rulings that have struck down laws compelling students to salute the flag and recite the pledge of allegiance and requiring citizens to display the state motto on their license plates.

Free speech arguments

The judge shot down a number of issues raised by the state Attorney General’s Office in defense of the law, including that the speech at issue should be considered “commercial” and therefore entitled to less protection under the First Amendment. Eagles said it’s possible the Supreme Court could set an intermediate standard, considering that there’s a governmental interest in regulating medical care. But, she wrote, North Carolina’s law “goes well beyond” the requirements of making sure patients can give informed consent for their medical care.

The attorney general also argued that the state has an interest in protecting abortion patients from psychological and emotional distress. But Eagles wrote the ultrasound provision is “likely to harm the psychological health of the very group the state purports to protect.”

Eagles also puzzled over the argument that women can simply avert their eyes and cover their ears while the ultrasound is shown. The law requires patients to certify in writing that the requirement has been met.

“It is hard to understand how she could do this if she refuses to hear,” Eagles wrote. “Assuming this is possible, it results in compelling an unwilling speaker to deliver visual and spoken messages to a listener who is not listening or looking.”

Eagles said she would allow both sides to present additional evidence before the trial, and she set Dec. 5 for the next hearing in the case. The hearing would be an opportunity for the state to try to persuade the judge to modify or vacate her preliminary injunction.

Federal judges have barred similar laws in Texas and Oklahoma.