Stuart v. Loomis

Citation992 F.Supp.2d 585
Decision Date17 January 2014
Docket NumberNo. 1:11–CV–804.,1:11–CV–804.
CourtU.S. District Court — Middle District of North Carolina
PartiesGretchen S. STUART, M.D., et al., Plaintiffs, v. Ralph C. LOOMIS, M.D., et al., Defendants.


Held Unconstitutional

West's N.C.G.S.A. § 90–21.85.

Anton Metlitsky, O'Melveny & Myers LLP, Julie Rikelman, Diana O. Salgado, Planned Parenthood Federation of America, New York, NY, Helene T. Krasnoff, Planned Parenthood Federation of America, Laura Conn, Walter Dellinger, O'Melveny & Myers, L.L.P., Washington, DC, Christopher A. Brook, American Civil Liberties Union, Raleigh, NC, for Plaintiffs.

Isham Faison Hicks, N.C. Department of Justice, Raleigh, NC, for Defendants.


CATHERINE C. EAGLES, District Judge.

In 2011, North Carolina imposed new requirements on health care providers who treat patients seeking abortions. The Woman's Right to Know Act (the Act), codified at N.C. Gen.Stat. §§ 90–21.80 through 90–21.92, sets forth the information physicians and other health care providers 1 (hereinafter “providers”) are required to make available to a woman seeking an abortion before she can give informed consent. Another section, the “speech-and-display provision,” requires that the provider perform an ultrasound at least four hours in advance of an abortion, during which he or she must display ultrasound images so that the patient may view them and must describe the images to the patient. The description must include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable. The woman need not watch or listen to the display and explanation.

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. Defendants are various North Carolina government agents sued in their official capacities, which the Court will refer to as either Defendants or the state.” Plaintiffs primarily object to being required to deliver the speech-and-display information to women who do not wish to receive it and to women at risk of serious psychological harm from the information.

The Supreme Court has never held that a state has the power to compel a health care provider to speak, in his or her own voice, the state's ideological message in favor of carrying a pregnancy to term, and this Court declines to do so today. To the extent the Act is an effort by the state to require health care providers to deliver information in support of the state's philosophic and social position discouraging abortion and encouraging childbirth, it is content-based, and it is not sufficiently narrowly tailored to survive strict scrutiny. Otherwise, the state has not established that the speech-and-display provision directly advances a substantial state interest in regulating health care, especially when the state does not require the patient to receive the message and the patient takes steps to avoid receipt of the message. Thus, it does not survive heightened scrutiny.

Because the speech-and-display provision violates Plaintiffs' First Amendment rights, enforcement of this provision must be enjoined. Plaintiffs' due process claim is thus moot. Finally, the Court agrees with the parties' proposed constructions of certain disputed provisions, so that the Act is not void as vague.


In their initial complaint, Plaintiffs contended that the Act violated their constitutional rights in a number of ways. They immediately moved for a preliminary injunction based on First Amendment and vagueness arguments. The Court found that Plaintiffs were likely to succeed on the merits of their First Amendment compelled speech claims related to the speech-and-display provision, granted Plaintiffs' motion in part, and enjoined Defendants from enforcing the speech-and-display provision. See Stuart v. Huff, 834 F.Supp.2d 424 (M.D.N.C.2011); (CM–ECF Docs. 40, 66.) The Court denied the motion as to Plaintiffs' vagueness arguments, and the remainder of the Act became effective on October 28, 2011.

After the Court enjoined part of the Act, several individuals sought to intervene as defendants in the action. The Court denied their motion. Stuart v. Huff, No. 1:11–cv–804, 2011 WL 6740400 (M.D.N.C. Dec. 22, 2011). The Fourth Circuit affirmed. Stuart v. Huff, 706 F.3d 345 (4th Cir.2013).

After a period of discovery, Plaintiffs filed a Second Amended Complaint which narrowed their claims. (Doc. 75.) Their First Amendment, due process, and vagueness claims remain. The parties have each moved for summary judgment.

Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When both parties move for summary judgment, “the court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003) (internal quotation marks omitted). In reviewing each motion, the court should “resolve all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion.” Id. (internal quotation marks omitted).


Plaintiffs contend that the speech-and-display provision violates their First Amendment rights because it compels them to deliver the state's content-based message to their patients, a message they do not want to deliver in the absence of a request from or consent of their patients. Plaintiffs contend that the Court should apply strict scrutiny to this compelled, content-based speech, and that the provision does not survive this review.

Defendants disagree both as to this standard of review and as to the outcome. While they admit the provision compels speech, they contend that it compels health care providers to give abortion patients truthful, non-misleading, and relevant information sufficient to satisfy the deferential standard they contend the Supreme Court established in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). In the alternative, Defendants argue that the speech is commercial, triggering intermediate scrutiny, or, again in the alternative, that the Act passes constitutional muster even applying strict scrutiny.

I. Factual and Legal Background

In support of their motion, Plaintiffs rely on the declarations of seven physicians, (Docs. 107–112, 115), testimony from the state's expert, (Docs. 113–1, 133–1), and the declaration of one woman who underwent an abortion. (Doc. 114.) In support of their motion, Defendants rely on the report of the state's expert, (Doc. 117–1), and on affidavits from three women who had abortions, originally submitted by non-parties in support of their motion to intervene.2 (Docs. 45–4 to 45–6.)

The Court concludes that the material facts are undisputed and that summary judgment is appropriate.3

A. Speech–and–Display Provision

The Act requires an ultrasound at least four and no more than seventy-two hours before an abortion. N.C. Gen.Stat. § 90–21.85(a). During this ultrasound procedure, the patient must lie on an examination table where she either (i) exposes the lower portion of her abdomen, or (ii) is naked from the waist down, covered only by a drape. (Doc. 107 at ¶ 13; see also Doc. 110 at ¶ 10; Doc. 111 at ¶ 10.) Depending on the stage of pregnancy, the provider (i) inserts an ultrasound probe into the patient's vagina, or (ii) places an ultrasound probe on her abdomen.4 (Doc. 107 at ¶ 13; Doc. 110 at ¶ 10; Doc. 111 at ¶¶ 10–11.) The provider must display the images produced from the ultrasound “so that the pregnant woman may view them.” N.C. Gen.Stat. § 90–21.85(a)(3). Providers must then 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,” id. § 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 membersand internal organs, if present and viewable.” Id. § 90–21.85(a)(4).

The Act provides that [n]othing in this section shall be construed to prevent a pregnant woman from averting her eyes from the displayed images or from refusing to hear the simultaneous explanation and medical description.” Id. § 90–21.85(b). If the patient does not want to see the ultrasound images or hear the description and explanation concerning the ultrasound images, the provider may give the patient eye blinders and headphones so that, as a practical matter, she may avoid seeing the ultrasound images and/or hearing the fetal heartbeat and the description of the ultrasound images. ( See Doc. 113–1 at 6; Doc. 133–2 at 3–4; see also Doc. 107 at ¶¶ 31–32; Doc. 110 at ¶¶ 21–22; Doc. 111 at ¶ 18.) However, providers must comply with the speech-and-display requirements regardless, even if (i) the patient wears blinders and earphones and cannot see or hear the message; (ii) they believe that acting over the patient's objection will harm the patient or violate medical ethics; or (iii) doing so is contrary to their medical judgment. ( See Doc. 107 at ¶¶ 22–24, 42, 46; Doc. 108 at ¶ 11; Doc. 109 at ¶ 16; Doc. 110 at ¶ 14; Doc. 111 at ¶ 14; Doc. 112 at ¶ 12); see alsoN.C. Gen.Stat. § 90–21.85(a).

A woman who does not watch or listen to the real-time display and description can still give informed consent to an abortion. SeeN.C. Gen.Stat. §§ 90–21.82, 90–21.85(b). When a provider displays and describes ultrasound images to patients who take steps to avoid seeing the images or hearing the description, the quality of informed consent is not improved and no medical purpose is served. ( See Doc. 107 at ¶¶ 23, 30–32, 42; Doc. 110 at ¶¶ 20–22; Doc. 111 at ¶¶ 16–19; Doc. 113–1 at 7–8, 11; Doc. 115 at ¶¶ 20–21.)

B. ...

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