Forced Ultrasound Law Struck Down On 1A Grounds

And Also:  While Rust v. Sullivan is a problematic ruling, a more recent opinion did hold that: "United States may no longer compel US-based AIDS funding recipients to oppose prostitution as a condition of receiving federal funding." Though I wonder how the case discussed below would have come out if there was a forced ultrasound law without the coerced speech so blatantly required (e.g., a printout of the ultrasound has to be provided with a state pamphlet), again it's a promising approach.

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.

A conservative 4CA judge wrote the unanimous panel decision, and in the process  clearly causing a circuit split (the opinion explicitly rejected the approach of the 5CA, e.g.), overturned a NC forced ultrasound law on First Amendment grounds. Since the law "requires physicians to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions," to me it also is problematic on substantive due process grounds. Forcing unnecessary medical treatment is a problem there, especially when it requires inserting probes into sensitive areas.

Both are a problem independently of some liberty interest in abortion choice and it is helpful to view things -- especially given anti-abortion sentiments including on the Supreme Court -- in that fashion.  The abortion issue involves a range of matters, including various constitutional provisions, which is basically why the matter intrigues me so much.  The Supreme Court, putting aside the wrongly decided Rust v. Sullivan case, however, has largely avoided such things.  An exception would be the spousal notification provision in Casey, which was struck down partially as a threat to gender equality.  A circuit split might require a chance of pace.

The issue of physician-patient relations has been addressed in various cases though again it was treated as a privacy matter. After having a whole section on the free speech issues involved in his dissent in Poe, e.g., Justice Douglas did not highlight the issue in Griswold.  Later cases challenged certain required scripts as unduly biased and burdensome though the breadth of such rulings were themselves challenged in Casey.  The opinion left open the power of states to include some requirements, even if merely to promote a certain view of life, but the matter was only briefly addressed. A case the directly deals with this issue could be more helpful there though given the membership of the USSC ...

The 4CA discusses the normal informed consent law here, which doesn't go as far the law here. It's a rather curious law really since "rather than engaging in a conversation calculated to inform, the physician must continue talking regardless of whether the patient is listening." The idea there is partially to provide an out to the patient who doesn't want to listen, but it sets up a somewhat absurd situation for the woman on the examination table. The state admitted the information 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." The state is allowed to promote that viewpoint and Casey suggests even do so by requiring the doctor to provide certain types of literature, but doing so in this fashion is "fraught with stress and anxiety" for the patient.

Unless there is an "abortion exception" to the First Amendment, this is problematic.  But, there is something of one already with Rust v. Sullivan, which allowed a content based alteration of the normal medical process, even when rules of constitutional avoidance at the very least counseled otherwise.  We saw it too when the state is allowed to single out certain moral views with clear religious overtones (see the "conscience" portion of Casey) to deny Medicaid funds even in cases of rape or serious health issues (not that the average pregnancy lacks some).  And, if certain courts can determine a forced ultrasound doesn't violate the 5A (due process), why shouldn't the 1A go to the wayside some too? 

Biased coerced speech requirements that are performed in such an intimate and invasive fashion provide a means to show that - contra Scalia - the Constitution does have something to say about abortion in various ways.  The "Woman’s Right to Know Act" is a somewhat Orwellian label, since it includes not only the "right to  know," but the obligation to do things even when one doesn't want to know. Likewise, as noted in the Cruzan discussion, the usual selective rules apply. Should women be forced to undergo this process to see malformed fetuses to inform them fully to help them determine if they wish to bring their pregnancies to term?  

Anyway, small Christmas gift for choice using alternative route. A few times, vagueness was used to help freedom of choice. This provides another route as well, one that in some cases has a chance.  It also has been used against regulations of "crisis pregnancy centers," so can be a two-pronged sword.  Ditto with regard to clinic protests.  But, this time, it was used to help those inside the clinics too.