Supreme Court Declines To Review Ruling Striking Down North Carolina Ultrasound Law

Yesterday, the Supreme Court let stand a ruling striking down North Carolina's mandatory ultrasound law.


The Supreme Court declined review today in a case dealing with North Carolina’s law mandating ultrasounds for all abortions, meaning that a previous ruling striking the law down will stand:

WASHINGTON — The Supreme Court on Monday refused to hear an appeal from North Carolina officials seeking to revive a state law that had required doctors to perform ultrasounds, display the resulting sonograms and describe the fetuses to women seeking abortions.

The Supreme Court’s one-sentence order, as is the custom, gave no reasons. Justice Antonin Scalia noted a dissent, also without saying why.

The order left in place an appeals court ruling that had held the law unconstitutional as a violation of the First Amendment.

“The state cannot commandeer the doctor-patient relationship to compel a physician to express its preference to the patient,” Judge J. Harvie Wilkinson III wrote in December for a unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va. “This compelled speech, even though it is a regulation of the medical profession, is ideological in intent and in kind.”

Other federal appeals courts upheld similar laws from Texas and South Dakota. Such disagreements among appeals courts often lead to Supreme Court review.

In urging the Supreme Court to hear the North Carolina case, Walker-McGill v. Stuart, No. 14-1172, the state’s attorney general, Roy Cooper, told the justices that the law is “perfectly consistent with the First Amendment, as a reasonable regulation of medical practice.”

According to Mr. Cooper, 24 states require an ultrasound to be performed or offered before the performance of an abortion. “Five states have enacted essentially the same display-and-describe requirement at issue in this case,” he wrote, “and an additional four states require a physician to provide a simultaneous explanation of an ultrasound image upon a woman’s request.”

Monday’s development, which set no precedent, did not affect the validity of any law aside from North Carolina’s.

The doctors and health care providers who challenged the North Carolina law urged the justices to turn down the state’s appeal.

“The state requires physicians to recite the state’s message even when the patient physically avoids seeing or hearing it,” their brief said. “That is farce, not informed consent, and it demonstrates beyond any doubt that the requirement is an impermissible attempt to use physicians to spread the state’s ideological message. The First Amendment simply does not allow that result.”

Abortion rights groups welcomed the Supreme Court’s action. “This misguided law would have inserted politics and bad medicine into every exam room in North Carolina,” Cecile Richards, president of Planned Parenthood Federation of America, said in a statement.

Lyle Denniston comments:

The denial of review in Walker-McGill v. Stuart, with Justice Antonin Scalia dissenting without writing an opinion, came as the Justices granted review of two more cases for decisions in the next Term, starting in October — cases on the authority of Indian tribal courts, and on the rights of prison inmates who lack funds to pay a lawyer to pursue court challenges to their convictions or sentences.

Because the Court, as usual, provided no explanation for its vote not to review of North Carolina’s 2011 ultrasound law, its action was not a reliable indicator of how the Justices would have ruled on the issue had they taken it on.  But the order had the practical effect of leaving undisturbed a lower-court ruling striking down that law on the premise that it was “ideological in intent and in kind” and thus not a valid form of state regulation of medical practice.

The U.S. Court of Appeals for the Fourth Circuit ruled that the law violated the free-speech rights of doctors, because it compelled them to convey the state’s message to a pregnant woman along with an emotionally charged showing of the image of the fetus within her body — even if the woman tried not to look or hear, and even if her doctor believed that the message could harm her psychologically.

State officials, in asking the Supreme Court to review the appeals court decision, argued that the Justices had previously made clear that states could pass laws to try to discourage women from having abortions, and could do so in the course of regulating the actual medical processes of abortion.  The 2011 law, the state contended, was nothing more than an “informed consent” law to test the sincerity and firmness of the woman’s decision to seek an abortion.

Although the state officials also argued that federal appeals courts have reached conflicting decisions on the validity of ultrasound laws in the abortion context, North Carolina doctors and clinics countered that there actually is not a specific conflict among the courts of appeals.

This is, of course, the time to once again mention the proviso that drawing conclusions from the fact that the Court has declined to accept a particular case is not necessarily advisable. There may be some procedural issue affecting a particular case that makes it an inappropriate subject for review by the Supreme Court, it may be that one side or the other does not believe that now is the appropriate time to address a particular issue, or it may be that the Justices are still waiting for the Circuit Courts to deal with the issue. Generally, however, the Court is more likely to take a case when there are conflicts between the Circuits, which is why for example they didn’t accept a same-sex marriage case for review until the Sixth Circuit issued a ruled that was different from the ones we’d seen from the Fourth, Seventh, Ninth, and Tenth Circuits. In this case, we’ve got something of the same situation in that, notwithstanding the arguments that the opponents of the law made, there does seem to be a clear split among the circuits when it comes to laws that require an ultrasound prior to obtaining an abortion. The fact that the Justices passed on taking the case given all of this does seem significant, and makes it seem as though the Justices are doing their best to avoid stepping into the abortion debate again.

In this respect, it’s worth noting that it’s actually been some time since the Justices have issued a significant abortion rights ruling. The most recent case was Gonzalez v. Catharta 2007 case that upheld the Partial Birth Abortion Act, a law passed by Congress in 2003. Prior to that, the last major case dealing with a state-level law was Stenberg v. Carhart from 2000 which dealt with a similar “partial birth abortion” ban passed by Nebraska in the late 1990s. The last major case that dealt the issues flowing from Roe v. Wade, though, was Planned Parenthood v. Casey, which came down all the way back in 1992. Since then, the abortion issue has largely been relegated to the lower Federal Courts and, of course, the state legislatures where, in the past several years, Republicans have managed to push through a new series of restrictions and regulations that, until now, the Court has declined to consider. At some point, though, one has to believe that the Justices will be unable to avoid this matter and will have to rule yet again on an issue that has proven to be more controversial than any other they’ve ever considered.

FILED UNDER: Law and the Courts, Supreme Court, US Politics, , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Gustopher says:

    It seems like the court would frown upon my plan for gun control legislation… The anal ultrasound, which must be performed by a doctor with admitting privileges to a hospital within 25 miles of the gun store, no less than 48 hours before the purchase of the gun, and which is then followed by the doctor reading a script containing medically refuted statements (“gun ownership increases the risk of colon cancer”) while showing prospective gun purchasers pictures of their aszhole.

  2. DrDaveT says:

    Justice Antonin Scalia dissenting without writing an opinion

    Wow, he’s not even bothering to pretend any more…

  3. JohnMcC says:

    @Gustopher: And a 24hr waiting period that follows the mandatory study of natural law before obtaining a vasectomy or a prescription for viagra.

  4. JohnMcC says:

    Pls release my brief and tasteful, even insightful! comment from moderation.

  5. Tillman says:

    It’s all Art Pope’s fault.

    He never lobbied for this because he’s a bizcon, but he definitely enabled it. I’m sure he’s facepalming somewhere in his millions.

  6. Meg Conway says:

    More people now understand NC, its residents and its government. NC Camber of Commerce and NC Bureau of Tourism can’t “unadvertise” this issue, and that’s a good thing.

    The law shouldn’t have passed or been sent for appeal.

    There’s another archaic law, a common law that everyone should know about which is explained through my experience here

    Roy Cooper, the NC attorney general thought the anti-abortion law was justified, and he’s a democrat. Mr. Cooper also thought the archaic common law was justified.

    Mr. Cooper can’t say “NO” to conservatives without conscience. Just say “NO” to NC.

    Meg Conway, formerly of NC