In a development that probably was obscured for a lot of people by seasonal distractions, a panel of the 4th Circuit Court of Appeals, in a decision written by a very prominent conservative judge (Harvie Wilkinson), drew a line where so-called “health” requirements theoretically aimed at informing women seeking an abortion become an effort to commandeer medical personal to talk them out of it. A new North Carolina law, the court decided, crosses that line by requiring docs not only to show pregnant women ultrasound images but to verbally describe “the unborn child.”
At Slate, Dahlia Lithwick comments:
This is a careful, well-reasoned opinion about when an abortion regulation goes far beyond the bounds of ostensibly protecting maternal or fetal health and becomes a traumatic event in its own right; an important statement about what happens when the state inserts itself—in this case, quite literally—into an intimate discussion between a woman, her doctor, and her own body. That it was written by the judge who was shortlisted for John Roberts’ seat as Chief Justice of the Supreme Court makes it all the more remarkable and powerful.
I’d say the most important implication, assuming Wilkinson’s take is affirmed at a higher level, is that courts won’t just read “health condition” in the stated rationale for abortion restrictions and sign off without paying any attention to what is really going on. Let’s hope Justice Kennedy in particular takes that distinction to heart.