EVER since the Supreme Court announced a limited right to abortion choice with its Roe v Wade decision in 1973, pro-life activists have fought to chip away at the decision. Efforts to curb abortion have accelerated and diversified recently, with an impressive 231 separate regulations coming into effect in just the past four years. The Guttmacher Institute, a pro-choice organisation, notes that 15 years ago only 13 states had four or five abortion restrictions on the books, enough to be considered “hostile” toward abortion rights. Today, 27 states have this many curbs on abortion, and 18 of those have six or more restrictions, a legal framework that Guttmacher pegs as “extremely hostile” to a woman’s right to choose. The past week has brought mixed news from Texas and North Carolina, two of these 18 “extremely hostile” states. A federal appeals court upheld regulations designed to curb abortion in Texas. Meanwhile a different appeals-court decision that had struck down a restriction in North Carolina became final (for now, at least) when the Supreme Court refused to review it.

Let’s begin in Texas. Two years ago, the Lone Star state adopted House Bill 2, a law requiring all abortion clinics to be “ambulatory surgical centers” with hospital-style facilities. That excludes all but seven or eight of the state’s 40-some clinics. The Texas law also specifies that doctors who perform abortions must have admitting privileges at a local hospital in case complications from the procedures turn dire and more sophisticated medical care becomes necessary (a condition that is very rare, as abortion is a reliably safe procedure). Last October the Supreme Court halted enforcement of the surgical-facility provision while litigation was pending. It also delayed the implementation of the admitting privileges rule at two clinics in the western part of Texas where they are the only state facilities providing abortion for hundreds of miles.

On June 9th the fifth circuit court of appeals upheld both regulations, paving the way for the majority of abortion clinics in the state of Texas to close. Whittling the number of clinics into the single digits for America’s second-largest state will not, three judges held in an unsigned opinion, pose an “undue burden” on Texans seeking to end their pregnancies. Women living in El Paso, where abortions are not available, can, and do, drive across the border to the Santa Teresa clinic in New Mexico. “[H]alf of the patients at the Santa Teresa clinic came from El Paso, which is in the same cross-border metropolitan area,” the panel wrote. “Texas women regularly choose to have an abortion in New Mexico independent of the actions of the state.”

Better news for pro-choicers came from the Supreme Court on Monday morning. The justices declined to hear an appeal from the state of North Carolina in the case of Stuart v Camnitz, a fourth-circuit ruling striking down a requirement that doctors conduct ultrasounds on their patients between four and 72 hours before performing an abortion. The ultrasound law, passed in 2011, is a significantly amplified version of an informed consent rule. In Planned Parenthood v Casey the court ruled in 1992 that Pennsylvania could impose a 24-hour waiting period and “inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth and the ‘probable gestational age of the unborn child.’” Casey also permitted the state to require the doctor to “inform the woman of the availability of printed materials published by the state describing the foetus and providing information about medical assistance for childbirth, information about child support from the father and a list of agencies which provide adoption and other services as alternatives to abortion.”

But if a picture is worth 1,000 words, then a sonogram image is worth at least 1,000 pamphlets. North Carolina figured that if pregnant women were confronted with a live picture of the foetus in their wombs they would reconsider aborting them. Women could look away or cover their eyes if they wished, but doctors were required to describe the foetus, its measurements and its parts in detail. Here is how Judge J. Harvie Wilkinson III depicted the examination-room scenario on December 22nd of last year:

This provision...finds the patient half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina. Informed consent has not generally been thought to require a patient to view images from his or her own body, much less in a setting in which personal judgment may be altered or impaired. Yet this provision requires that she do so or “avert[] her eyes.” Rather than engaging in a conversation calculated to inform, the physician must continue talking regardless of whether the patient is listening.

This ordeal may sound like an “undue burden” on the patient—a burden Casey says is inconsistent with Roe—but Judge Wilkinson ruled against North Carolina on quite different grounds. It violates the First Amendment, he held, for the state to require doctors to give voice to its ideological agenda. The law requires that “the physician must convey the descriptions mandated by the statute in his or her own voice.” This requirement “is quintessential compelled speech. It forces physicians to say things they otherwise would not say.” Echoing a famous line fromTinker v Des Moines involving the free-speech rights of children (students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”), Judge Wilkinson concluded that “professionals do not leave their speech rights at the office door.” The ultrasound law is constitutionally infirm, then, not because it runs afoul of Roe v Wade but because it violates the self-expression rights of the abortion provider.

In failing to take up the North Carolina case, the justices were silent, as they always are, on their reasoning. But it is fairly clear why longtime Roe skeptics Samuel Alito, John Roberts and Clarence Thomas did not join Antonin Scalia in registering a dissent from the denial. As dubious as they are of the basis for a constitutional right to abortion, these justices are generally very strong on the First Amendment. They evidently agree that forcing doctors to be the state’s mouthpiece is constitutionally problematic enough to strike down the law, even if it is motivated by a position they happen to share.

By leaving the fourth-circuit ruling alone, the Supreme Court has effectively foreclosed ultrasound laws requiring doctor explanations in Maryland, North Carolina, South Carolina, Virginia and West Virginia. But for now, 21 ultrasound laws in states under the jurisdiction of one of the other 12 federal circuit courts are safe. Such is the patchwork of abortion legislation in America.

Dig deeper:

Abortion in America: a costly choice (Oct 2014)

Why crowdfunding an abortion makes some sense (Sept 2014)