Stuart v. Huff

• Decision Date: 19 December 2011
• Docket Number: No. 1:11CV804.,1:11CV804.
• Citation: 834 F.Supp.2d 424
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Gretchen S. STUART, M.D., et al., Plaintiffs, v. Janice E. HUFF, M.D., et al., Defendants.

834 F.Supp.2d 424

Gretchen S. STUART, M.D., et al., Plaintiffs,

v.Janice E. HUFF, M.D., et al., Defendants.

No. 1:11CV804.

United States District Court, M.D. North Carolina.

Dec. 19, 2011.

Validity Called into Doubt

West's N.C.G.S.A. § 90–21.85.

Katherine Lewis Parker, American Civil Liberties Union of North Carolina, Raleigh, NC, Andrew D. Beck, American Civil Liberties Union, Bebe J. Anderson, New York, NY, Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC, for Plaintiffs.

Thomas J. Ziko, Isham Faison Hicks, Stephanie A. Brennan, N.C. Department of Justice, Raleigh, NC, William Eric Medlin, Robertson Medlin & Bloss, PLLC, Greensboro, NC, Samuel B. Casey, Jubilee Campaign–Law of Life Project, Steven H. Aden, Alliance Defense Fund, Washington, DC, for Defendants.

AMENDED MEMORANDUM OPINION AND ORDER

CATHERINE C. EAGLES, District Judge.

Earlier this year, the North Carolina General Assembly passed the “Woman's Right to Know Act” (“the Act”), 2011 N.C. Sess. Laws 405 (to be codified at N.C. Gen.Stat. §§ 90–21.80 through 90–21.92). The Act is slated to become effective on October 26, 2011. The Plaintiffs—several North Carolina physicians and health care providers—brought this action on behalf of themselves and their patients challenging the constitutionality of parts of the Act.

Before the Court is the Plaintiffs' motion asking that a preliminary injunction enjoining the Defendants from enforcing parts of the Act be granted before the effective date of the statute and remain in place until the constitutional challenges are resolved. The Plaintiffs contend the Act is unconstitutional on a number of grounds but limit their arguments at this stage to a First Amendment challenge, a void-for-vagueness challenge, and a substantive due process challenge.¹

In support of their motion, the Plaintiffs submitted four affidavits. (Docs. 10, 11, 12, and 13.) The Defendants submitted no evidence. Each party submitted briefs and the Court heard the arguments of counsel on October 17.

Based on the record before it, the Court finds that the Plaintiffs are likely to succeed on the merits of the First Amendment challenge to N.C. Gen.Stat. § 90–21.85. Given the ruling on the First Amendment issue, the Court finds it unnecessary to address the substantive due process claim and the vagueness claims directed toward that same section. The Plaintiffs have not shown a likelihood of success on the merits as to the remaining vagueness claims.

THE ACT

The Act by its terms is directed toward the informed consent requirements for a woman seeking an abortion. It has two major components. First, it requires physicians or others listed in the statute (hereinafter “providers”) to make certain information available to a woman seeking an abortion at least 24 hours in advance of the procedure. These provisions are set forth in section 90–21.82 and are not challenged in large part. Second, it requires providers to perform an ultrasound at least four hours in advance of the procedure, during which time the provider must make the images produced from the ultrasound visible to the patient and must describe to the patient the images seen on the ultrasound. These requirements are set forth in section 90–21.85 and will be referred to as the “speech-and-display requirements.”

DISCUSSION

I. PRELIMINARY INJUNCTION STANDARD

A preliminary injunction is “an extraordinary remedy ... which is to be applied only in limited circumstances which clearly demand it.” Direx Isr., Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir.1991) (internal quotation marks omitted). Historically, the purpose of the preliminary injunction has been “to protect the status quo and to prevent irreparable harm during the pendency of the litigation to preserve the court's ability in the end to render a meaningful judgment on the merits.” Sun Microsystems, Inc. v. Microsoft Corp. (In re Microsoft Corp. Antitrust Litig.), 333 F.3d 517, 526 (4th Cir.2003). Before a preliminary injunction can be granted, the Plaintiffs must establish that: (1) they are “likely to succeed on the merits”; (2) they are “likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tip in [their] favor”; and (4) “an injunction is in the public interest.” Winter v. Natural Resources Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); accord WV Ass'n of Club Owners and Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir.2009); Rebel Debutante LLC v. Forsythe Cosmetic Grp., Ltd., 799 F.Supp.2d 558, 568 (M.D.N.C.2011).

The Court will focus its evaluation on whether the Plaintiffs have established a likelihood of success on the merits. If they have, the threatened constitutional violations unquestionably represent irreparableharm. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Similarly, the threatened constitutional violations would also outweigh whatever burden the injunction would impose because the Defendants are “in no way harmed by the issuance of an injunction that prevents the state from enforcing unconstitutional restrictions.” Legend Night Club v. Miller, 637 F.3d 291, 302–03 (4th Cir.2011). “[U]pholding constitutional rights is in the public interest.” Id.;accord Tex. Med. Providers Performing Abortion Servs. v. Lakey, 806 F.Supp.2d 942, 956–57 (W.D.Tex.2011).

II. FIRST AMENDMENTA. Likelihood of Success on the Merits

Section 90–21.85 of the Act setting forth the “speech-and-display requirements” first requires that a woman undergo an ultrasound at least four hours before an abortion.² The statute also mandates that the physician or qualified technician working with the physician shall display the images produced from the ultrasound “so that the [patient] may view them.” N.C. Gen.Stat. § 90–21.85(a)(3). It further requires the providers to give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” N.C. Gen.Stat. § 90–21.85(a)(2), and “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.” N.C. Gen.Stat. § 90–21.85(a)(5).³ The Plaintiffs contend these speech-and-display requirements violate the First Amendment by compelling unwilling speakers to deliver the state's message discouraging abortion.

The Plaintiffs argue that the compelled speech required by the Act should be viewed under a strict scrutiny standard. The Defendants argue that strict scrutiny is the wrong standard to apply; they contend in the alternative that even applying strict scrutiny, the state has three compelling state interests: protecting the psychological health of the patient, preventing coercive abortions, and expressing its preference for the life of the unborn.

The First Amendment generally includes the right to refuse to engage in speech compelled by the government. E.g., Hurley v. Irish–Am. Gay, Lesbian & Bisexual Grp. of Boston, Inc., 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). “[T]he First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision of both what to say and what not to say.” Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796–797, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (emphasis omitted). Both compelled statements of opinions and compelled statements of fact burden protected speech. Id. at 797–98, 108 S.Ct. 2667.

The Supreme Court has historically taken a dim view of content-based speech compelled by the government, finding it to violate the First Amendment in the absence of a compelling state interest in a wide variety of circumstances. E.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (striking down law that compelled students to salute the flag and recite the pledge of allegiance); Wooley v. Maynard, 430 U.S. 705, 713, 715, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (holding that a New Hampshire law could not mandate that citizens “use their private property as a ‘mobile billboard’ for the State's ideological message”). “Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech,” and laws which mandate speech are generally considered content-based regulations of speech. Riley, 487 U.S. at 795, 108 S.Ct. 2667.

“[C]ontent-based regulations of speech are presumptively invalid.” Davenport v. Wash. Educ. Ass'n, 551 U.S. 177, 188, 127 S.Ct. 2372, 168 L.Ed.2d 71 (2007). Even when the state has a compelling interest, “any restriction based on the content of the speech must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.” Pleasant Grove City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 1132, 172 L.Ed.2d 853 (2009); see, e.g., United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).

It is undisputed that the Act compels content-based speech by providers; it requires providers to orally and visually convey specified material ⁴ about the fetus to their patients. The message is compelled regardless of a patient's individual circumstances or condition and regardless of the provider's medical opinion. The message is required 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. It is further undisputed that this implicates the First Amendment rights of providers such as the Plaintiffs. ⁵See Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 884, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion) ( citing Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (applying strict scrutiny to compelled ideological speech)). Thus, strict scrutiny would ordinarily apply.

The Defendants contend that...