Tuesday, May 1, 2012

Circuit Split Watch: A New Abortion Battleground

This article first appeared in the April 30, 2012, issue of the National Law Journal's Supreme Court Insider.

In a matter of days, a new battle over abortion could reach the U.S. Supreme Court. At issue is whether states can require doctors to perform ultrasounds on women seeking abortions, and to display and describe the fetal images to them. Federal courts have recently split on the question.

According to an April report from the Guttmacher Institute, a pro-choice think tank, more than twenty states regulate pre-abortion ultrasounds. But provisions vary, ranging from written information provided to mandatory ultrasounds. Three states, North Carolina, Texas, and Oklahoma, have the most stringent requirements.

Under North Carolina law, the doctor must perform an ultrasound on a woman seeking an abortion and then display images from the ultrasound to her, noting “the presence, location, and dimensions of the unborn child” and describing “external members and internal organs, if present and viewable.”

Several North Carolina doctors and other health care providers challenged the constitutionality of the law in Stuart v. Huff.

Judge Catherine Eagles of the U.S. District Court for the Middle District of North Carolina preliminarily enjoined the “speech-and-display requirements,” as she called them.

“The First Amendment,” Judge Eagles wrote, “generally includes the right to refuse to engage in speech compelled by the government.” The North Carolina law requires speech via words and imagery, “even when the provider does not want to deliver the message and even when the patients affirmatively do not wish to see it or hear it,” she said.

Eagles also found “no medical purpose” in the speech-and-display requirements.

An order in the case, denying intervention of additional parties, is on appeal at the U.S. Court of Appeals for the 4th Circuit, but the case itself remains before the district court in North Carolina. A trial is set for January 2013.

Walter Dellinger, a prominent Supreme Court advocate with O’Melveny & Myers, who served as acting Solicitor General of the United States, recently entered an appearance in the 4th Circuit for the plaintiffs, opposing intervention. Dellinger’s involvement, in what could be considered a side issue, signals the high-profile nature of the case as a whole and its possible Supreme Court track.

Like North Carolina, Texas also has a mandatory ultrasound law with speech-and-display requirements. However, a federal appeals court has upheld the Texas law.

Writing for a unanimous three-judge panel in Texas Medical Providers Performing Abortion Services v. Lakey, Chief Judge Edith Jones of the U.S. Court of Appeals for the 5th Circuit declared that the “disclosures of a sonogram . . . and [its] medical descriptions are the epitome of truthful, non-misleadling information,” a reference to language in Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1992 Supreme Court decision.

Chief Judge Jones maintained that the Texas disclosures are “more graphic and scientifically up-to-date,” but “not different in kind” than those “discussed [and approved] in Casey—probable gestational age of the fetus and printed material showing a baby’s general prenatal development stages.”

Jones rejected what she saw as the assumption that Casey is “a constitutional ceiling for regulation of informed consent to abortion, not a set of principles to be applied to the states’ legislative decisions.”

The 5th Circuit denied rehearing en banc in February. As a result, a petition for certiorari must be filed with the Supreme Court by May, absent an extension.

Although the federal circuit split is still developing, the Supreme Court may decide to review the ultrasound question, because of its nationwide importance. From the Court’s action in the coming months, whatever that action is, other states will take cues about their boundaries in the future.

A state trial court in Oklahoma recently struck down that state’s ultrasound law, which also includes speech-and-display requirements.