Fact Check: Does North Carolina Abortion Bill Compel Doctors' Speech?
A bill on North Carolina Gov. Roy Cooper's desk would ban abortions in cases where women are unhappy with the child’s sex, race or because of Down syndrome. Republican state Rep. Dean Arp of Union County sponsored the bill.
In today’s Fact Check, we don't just look into that aspect of the bill but what Arp said in a recent N.C. Senate Judiciary Committee hearing. Some Democrats complained the bill would be intrusive because it requires doctors to confirm a woman’s motivation for getting an abortion before one is performed. Arp said the bill would not be intrusive. WRAL's Paul Specht joins us to assess that claim.
Marshall Terry: Paul, Rep. Arp told this committee the bill does not compel a doctor's speech when talking to a patient who is looking to get an abortion. What is meant by compelled speech?
Paul Specht: That's a legal term. He's basically saying that their bill would not tell a physician or an abortion practitioner what specifically to say. It's important to know the history here. Back in 2010, 2011, lawmakers crafted a bill that would require abortion practitioners to give a woman an ultrasound and describe what they saw on the ultrasound to the woman before she was allowed to have an abortion in North Carolina.
That was challenged in the courts. And ultimately, judges said that that was compelled speech and violated the doctors' First Amendment rights because the bill was specifically telling them what to say in the sense that it was telling them, "Hey, tell the mother what you see on the ultrasound." And so the courts threw that out. That's what Arp is referencing here. He's saying, "Hey, this bill is not like that old bill. We don't tell doctors what to say."
Terry: And is he right about that? Does this bill not compel speech or govern the conversation between doctor and patient, as Arp told the committee?
Specht: Well, he has a point, but he took it a little too far here in his description of it. He's right in that the bill does not tell practitioners what to say or how to say it. The bill asks physicians to "confirm" that mothers are not having an abortion because of the sex or race or Down syndrome diagnosis of the child.
And what experts told us is the way that's phrased, the word "confirm" leaves physicians and practitioners with almost no other choice but to ask, because the bill also requires them to file a report with the state saying, "We have confirmed that those discriminatory motives are not at play here." And so while Arp is right in one sense that it does not tell doctors, "Hey, ask them this," it does tell them to confirm something. And while it's silent on the method a doctor might use, they really have no other realistic choice but to ask a woman why she's seeking this abortion.
Terry: What are doctors saying about this bill?
Specht: They're saying they're worried that it could get in between their relationship with patients. That's the main concern. And to be honest, that's why we thought the fact check was worth doing. If this were to become law, which as we speak, it's on Gov. Cooper's desk. We don't know what he's going to do with it, but if it becomes law, doctors are worried that women may feel less comfortable coming to the office to have an abortion procedure or even to ask about it.
If we want to play this out in the real world, if there's a woman who's not in a great financial situation or she has other life things going on and maybe her child is diagnosed with medical issues, if this law was in place, they worry that she'll feel uncomfortable coming in and ultimately not receive the help that doctors may believe she needs.
Terry: Are doctors at all concerned about the legal liabilities if this bill gets signed?
Specht: Yes, they are. And I'm glad you brought that up, because this is sort of a two-part bill. The first part requires doctors to "confirm" that their patient is not having an abortion for those discriminatory motives. Then the second part is that they would have to document that confirmation and send "a statement" to the state. Doctors are worried that if they don't ask about someone's motives and they just file a statement using their own judgment that they could ultimately get in trouble if they're wrong.
Terry: How did you rate this claim by Rep. Dean Arp?
Specht: We rated this mostly false. Arp, if people recall, said it does not govern the conversation between patients and doctors. And while it doesn't specifically tell doctors what to say, it sort of puts them in a position where there's very few options except to ask their patients about their motives for an abortion. And so for that reason, we looked at the real world implications of this and decided his claim was mostly false.
Terry: All right, Paul, thank you.
Specht: Thank you.