                           PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 14-1150


GRETCHEN S. STUART, MD, on behalf of herself and her
patients seeking abortions; JAMES R. DINGFELDER, MD, on
behalf of himself and his patients seeking abortions; DAVID
A. GRIMES, MD, on behalf of himself and his patients
seeking abortions; AMY BRYANT, MD, on behalf of herself and
her patients seeking abortions; SERINA FLOYD, MD, on behalf
of herself and her patients seeking abortions; DECKER &
WATSON, INC., d/b/a Piedmont Carolina Medical Clinic;
PLANNED PARENTHOOD OF CENTRAL NORTH CAROLINA; A WOMAN'S
CHOICE OF RALEIGH, INC.; PLANNED PARENTHOOD HEALTH SYSTEMS,
INC.; TAKEY CRIST, on behalf of himself and his patients
seeking abortions; TAKEY CRIST, M.D., P.A., d/b/a Crist
Clinic for Women,

              Plaintiffs - Appellees,

         v.

PAUL S. CAMNITZ, MD, in his official capacity as President
of the North Carolina Medical Board and his employees,
agents and successors; ROY COOPER, in his official capacity
as Attorney General of North Carolina and his employees,
agents and successors; ALDONA ZOFIA WOS, in her official
capacity as Secretary of the North Carolina Department of
Health and Human Services and her employees, agents and
successors; JIM WOODALL, in his official capacity as
District Attorney ("DA") for Prosecutorial District ("PD")
15B and his employees, agents and successors; LEON STANBACK,
in his official capacity as DA for PD 14 and his employees,
agents and successors; DISTRICT ATTORNEY DOUGLAS HENDERSON,
in his official capacity as DA for PD 18 and his employees,
agents and successors; BILLY WEST, in his official capacity
as DA for PD 12 and his employees, agents and successors; C.
COLON WILLOUGHBY, JR., in his official capacity as DA for PD
10 and his employees, agents and successors; BENJAMIN R.
DAVID, in his official capacity as DA for PD 5 and his
employees, agents and successors; ERNIE LEE, in his official
capacity as DA for PD 4 and his employees, agents and
successors; JIM O'NEILL, in his official capacity as DA for
PD 21 and his employees, agents and successors,

                Defendants - Appellants,

JOHN THORP,

                Intervenor/Defendant,

FRANCIS J. BECKWITH, MJS, PhD; GERARD V. BRADLEY; TERESA S.
COLLETT; DAVID K. DEWOLF; RICK DUNCAN; EDWARD M. GAFFNEY;
STEPHEN GILLES; MICHAEL STOKES PAULSEN; RONALD J. RYCHLAK;
RICHARD STITH; RUTH SAMUELSON; PAT MCELRAFT; PAT HURLEY;
MARILYN AVILA; SUSAN MARTIN; CAROLYN M JUSTICE; RENA W.
TURNER; MICHELE D. PRESNELL; SARAH STEVENS; JACQUELINE
MICHELLE SCHAFFER; DEBRA CONRAD; MARK BRODY; CHRIS WHITMIRE;
ALLEN MCNEILL; DONNY LAMBETH; GEORGE CLEVELAND; LINDA
JOHNSON; DAVID CURTIS; JOYCE KRAWIEC; SHIRLEY RANDLEMEN; DAN
SOUCEK; NORMAN SANDERSON; WARREN DANIEL; BUCK NEWTON; KATHY
L. HARRINGTON; ANDREW BROCK,

                Amici Supporting Appellant,


AMERICAN   COLLEGE   OF   OBSTETRICIANS   AND    GYNECOLOGISTS;
AMERICAN   MEDICAL   ASSOCIATION;   AMERICAN    PUBLIC   HEALTH
ASSOCIATION,

                Amici Supporting Appellee.




Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cv-00804-CCE-LPA)


Argued:   October 29, 2014              Decided:   December 22, 2014


Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.




                                 2
Affirmed by published opinion.       Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Duncan joined.


ARGUED: John Foster Maddrey, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants.              Julie
Rikelman, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York,
for Appellees. ON BRIEF: Roy Cooper, Attorney General, Gary R.
Govert, Assistant Solicitor General, I. Faison Hicks, Special
Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellants.        Christopher Brook,
AMERICAN   CIVIL   LIBERTIES   UNION   OF   NORTH   CAROLINA   LEGAL
FOUNDATION, Raleigh, North Carolina; Andrew D. Beck, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Jennifer
Sokoler, CENTER FOR REPRODUCTIVE RIGHTS, New York, New York;
Walter Dellinger, Anton Metlitsky, Leah Godesky, O'MELVENY &
MYERS LLP, Washington, D.C.; Diana O. Salgado, New York, New
York, Helene T. Krasnoff, PLANNED PARENTHOOD FED. OF AMERICA,
Washington, D.C., for Appellees. Anna R. Franzonello, Mailee R.
Smith, William L. Saunders, Denise M. Burke, AMERICANS UNITED
FOR LIFE, Washington, D.C., for Amici Francis J. Beckwith, MJS,
PhD, Gerard V. Bradley, Teresa S. Collett, David K. Dewolf, Rick
Duncan, Edward M. Gaffney, Stephen Gilles, Michael Stokes
Paulsen, Ronald J. Rychlak, and Richard Stith.             Scott W.
Gaylord,   Jennings   Professor,   Thomas   J.   Molony,   Associate
Professor of Law, ELON UNIVERSITY SCHOOL OF LAW, Greensboro,
North Carolina, for Amici Ruth Samuelson, Pat McElraft, Pat
Hurley, Marilyn Avila, Susan Martin, Carolyn M. Justice, Rena W.
Turner, Michele D. Presnell, Sarah Stevens, Jacqueline Michelle
Schaffer, Debra Conrad, Mark Brody, Chris Whitmire, Allen
McNeill, Donny Lambeth, George Cleveland, Linda Johnson, David
Curtis, Joyce Krawiec, Shirley Randlemen, Dan Soucek, Norman
Sanderson, Warren Daniel, Buck Newton, Kathy L. Harrington, and
Andrew Brock. Kimberly A. Parker, Alathea E. Porter, Thaila K.
Sundaresan, Tiffany E. Payne, WILMER CUTLER PICKERING HALE AND
DORR LLP, Washington, D.C., for Amici American College of
Obstetricians    and    Gynecologists     and    American    Medical
Association.     Shannon Rose Selden, Courtney M. Dankworth,
DEBEVOISE & PLIMPTON LLP, New York, New York, for Amicus
American Public Health Association.




                                 3
WILKINSON, Circuit Judge:

       At issue here is a North Carolina statute that requires

physicians to perform an ultrasound, display the sonogram, and

describe the fetus to women seeking abortions. A physician must

display and describe the image during the ultrasound, even if

the woman actively “avert[s] her eyes” and “refus[es] to hear.”

N.C.    Gen.     Stat.       § 90-21.85(b).          This    compelled           speech,    even

though     it     is     a    regulation        of   the     medical        profession,       is

ideological       in     intent      and   in   kind.       The    means    used     by    North

Carolina        extend       well    beyond      those      states        have     customarily

employed to effectuate their undeniable interests in ensuring

informed consent and in protecting the sanctity of life in all

its phases. We thus affirm the district court’s holding that

this compelled speech provision violates the First Amendment.

                                                I.

       In July 2011, the North Carolina General Assembly passed

the Woman’s Right to Know Act over a gubernatorial veto. The Act

amended Chapter 90 of the North Carolina General Statutes, which

governs medical and related professions, adding a new article

regulating the steps that must precede an abortion.

       Physicians        and    abortion        providers         filed    suit     after    the

Act’s passage but before its effective date, asking the court to

enjoin enforcement of the Act and declare it unconstitutional.

In     October     2011,       the    district       court        issued    a     preliminary

                                                4
injunction barring enforcement of one provision of the Act, the

Display       of    Real-Time     View      Requirement    (“the   Requirement”),

codified at N.C. Gen. Stat. § 90-21.85. J.A. 143-44. The court

subsequently allowed the plaintiffs to amend their complaint.

The Third Amended Complaint asserted that the Display of Real-

Time View Requirement violated the physicians’ First Amendment

free       speech   rights      and   the    physicians’    and    the    patients’

Fourteenth Amendment due process rights. J.A. 282. 1

       The Display of Real-Time View Requirement obligates doctors

(or technicians) to perform an ultrasound on any woman seeking

an abortion at least four but not more than seventy-two hours

before the abortion is to take place. N.C. Gen. Stat. § 90-

21.85(a)(1). The physician must display the sonogram so that the

woman can see it, id. § 90-21.85(a)(3), and describe the fetus

in detail, “includ[ing] the presence, location, and dimensions

of the unborn child within the uterus and the number of unborn

children       depicted,”    id.      § 90-21.85(a)(2),      as    well   as   “the

presence of external members and internal organs, if present and

viewable,” id. § 90-21.85(a)(4). The physician also must offer

       1
        The Third Amended Complaint also challenged both the
Display of Real-Time View Requirement and the Informed Consent
to   Abortion  provision,   N.C.  Gen.  Stat.  §   90-21.82,  as
unconstitutionally vague. J.A. 281. The parties and the district
court agreed on savings constructions so that the Act was not
void for vagueness, and the plaintiffs did not appeal that
ruling. Stuart v. Loomis, 992 F. Supp. 2d 585, 611 (M.D.N.C.
2014) (district court opinion).


                                             5
to allow the woman to hear the fetal heart tone. Id. § 90-

21.85(a)(2). The woman, however, may “avert[] her eyes from the

displayed         images”      and     “refus[e]          to    hear     the     simultaneous

explanation and medical description” by presumably covering her

eyes and ears. Id. § 90-21.85(b).

       The Act provides an exception to these requirements only in

cases       of    medical     emergency.        Id.       § 90-21.86.         Physicians        who

violate the Act are liable for damages and may be enjoined from

providing         further     abortions        that       violate      the     Act    in    North

Carolina. Id. § 90-21.88. Violation of the Act also may result

in    the    loss      of   the     doctor’s    medical         license.       See   id.    § 90-

14(a)(2)          (The      North     Carolina           Medical       Board     may       impose

disciplinary           measures,      including          license    revocation,         upon     a

doctor who “[p]roduc[es] or attempt[s] to produce an abortion

contrary to law.”).

       Not       at   issue   in     this    appeal       are   several       other     informed

consent      provisions        to    which     physicians,         independently           of   the

Display of Real-Time View Requirement, are subject. The first is

the   informed         consent      provision       of    the    Act    itself.      Id.    § 90-

21.82. It requires that, at least twenty-four hours before an

abortion is to be performed, a doctor or qualified professional

explain      to       the   woman    seeking    the       abortion      the     risks      of   the

procedure, the risks of carrying the child to term, “and any

adverse psychological effects associated with the abortion.” Id.

                                                6
§ 90-21.82(1)(b),       (d).     The    physician          must       also    convey       the

“probable     gestational       age    of     the    unborn       child,”      id.     § 90-

21.82(1)(c), that financial assistance for the pregnancy may be

available, that the father of the child is obligated to pay

child support, and that there are alternatives to abortion, id.

§ 90-21.82(2)(a)-(d).       Furthermore,            the   doctor       must   inform       the

woman that she can view on a state-sponsored website materials

published by the state which describe the fetus. The doctor must

also give or mail the woman physical copies of the materials if

she wishes, and must “list agencies that offer alternatives to

abortion.” Id. § 90-21.82(2)(e).

     Before this Act, physicians were still subject to North

Carolina’s general informed consent requirements when conducting

abortions.     See   id.       § 90-21.13(a);             10A     N.C.       Admin.    Code

14E.0305(a);    Appellees’       Br.     6.     Prior      to    its     enactment,        the

physicians challenging the Act claim they were “inform[ing] each

patient about the nature of the abortion procedure, its risks

and benefits, and the alternatives available to the patient and

their   respective      risks     and    benefits”         and     “counsel[ing]           the

patient to ensure that she was certain about her decision to

have an abortion.” Appellees’ Br. 6.

     Both     parties      moved        for     summary          judgment.       Applying

heightened,    intermediate        scrutiny,         Stuart      v.    Loomis,       992    F.

Supp. 2d 585, 600-01 (M.D.N.C. 2014), the district court held

                                            7
that       the    Display     of     Real-Time         View    Requirement     violated      the

physicians’ First Amendment rights to free speech. Id. at 607-

09. It thus granted the plaintiffs’ motion for summary judgment

and entered a permanent injunction. Id. at 610-11. The court

declined to reach the merits of the due process claim, finding

it moot in light of the court’s ruling on the First Amendment

claim. Id. at 611. 2

       We        review   a        grant   of      summary       judgment     de    novo.     S.

Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d 560,

562 (4th Cir. 2014). In so doing, we view the facts in the light

most        favorable         to     the        state.        Moore-King     v.     Cnty.     of

Chesterfield, Va., 708 F.3d 560, 566 (4th Cir. 2013).

                                                  II.

                                                  A.

       “Congress shall make no law . . . abridging the freedom of

speech.” U.S. Const. amend. I. This concept sounds simple, but

proves more complicated on closer inspection. Laws that impinge

upon       speech     receive        different          levels    of     judicial    scrutiny

depending on the type of regulation and the justifications and

purposes         underlying         it.    On    the     one     hand,     regulations      that

       2
       After the district court’s order granting the preliminary
injunction, several individuals and pregnancy counseling centers
moved to intervene as defendants. The district court denied the
motion, Stuart v. Huff, 2011 WL 6740400 (M.D.N.C. Dec. 22,
2011), and this court affirmed, Stuart v. Huff, 706 F.3d 345
(4th Cir. 2013).


                                                   8
discriminate     against        speech        based    on     its   content      “are

presumptively invalid,” R.A.V. v. City of St. Paul, Minn., 505

U.S.   377,    382    (1992),     and    courts       usually    “apply   the    most

exacting scrutiny,” Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 642 (1994); see also United States v. Playboy Entm’t Grp.,

Inc., 529 U.S. 803, 814 (2000). On the other hand, “area[s]

traditionally        subject    to      government       regulation,”     such     as

commercial speech and professional conduct, typically receive a

lower level of review. Cent. Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm’n of N.Y., 447 U.S. 557, 562-63 (1980) (regulation of

commercial speech); see also Keller v. State Bar of Cal., 496

U.S. 1, 13-16 (1990) (regulation of legal profession).

       We thus must first examine the type of regulation at issue

to determine the requisite level of scrutiny to apply. Turner,

512 U.S. at 637 (explaining that “because not every interference

with speech triggers the same degree of scrutiny under the First

Amendment, we must decide at the outset the level of scrutiny

applicable”). As we do, we are mindful of “the First Amendment’s

command that government regulation of speech must be measured in

minimums, not maximums.” Riley v. Nat’l Fed’n of the Blind of

N.C., Inc., 487 U.S. 781, 790 (1988).

       The physicians urge us to find that the regulation must

receive    strict      scrutiny      because      it     is     content-based     and

ideological. See Appellees’ Br. 36-40. The state counters that

                                          9
the Requirement must be treated as a regulation of the medical

profession in the context of abortion and thus subject only to

rational    basis      review.      See    Appellants’        Br.     7-15,    20-28.      The

district    court      chose    a     different       path.    Recognizing          that   the

Requirement     both     compelled         speech     and     regulated       the    medical

profession,      the    court        applied      neither      strict      scrutiny        nor

rational    basis      review,       but   rather      the    intermediate          scrutiny

standard      normally         used        for      certain         commercial        speech

regulations. See Stuart v. Loomis, 992 F. Supp. 2d 585, 598-601

(M.D.N.C. 2014). For the reasons outlined below, we agree with

the   district     court       that    the   Requirement        is     a   content-based

regulation of a medical professional’s speech which must satisfy

at least intermediate scrutiny to survive.

                                             B.

      The Display of Real-Time View Requirement regulates both

speech and conduct. The physician must convey the descriptions

mandated by the statute in his or her own voice. The sonogram

display    is    also      intimately        connected         with     the    describing

requirement. The two are thus best viewed as a single whole. In

deciding whether an activity “possesses sufficient communicative

elements to bring the First Amendment into play, we have asked

whether    ‘[a]n    intent      to     convey     a   particularized          message      was

present, and [whether] the likelihood was great that the message

would be understood by those who viewed it.’” Texas v. Johnson,

                                             10
491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S.

405,     410–11          (1974)).        The       state’s       avowed       intent        and     the

anticipated         effect       of    all     aspects      of       the    Requirement       are    to

discourage abortion or at the very least cause the woman to

reconsider her decision. See Appellants’ Br. 29-32. The clear

import of displaying the sonogram in this context -- while the

woman who has requested an abortion is partially disrobed on an

examination table -- is to use the visual imagery of the fetus

to     dissuade          the     patient       from      continuing          with     the    planned

procedure.          If    the     state’s        intent         is    to    convey     a    distinct

message,       the       message      does     not       lose    its       expressive       character

because it happens to be delivered by a private party. Whether

one agrees or disagrees with the state’s approach here cannot be

the question. In this context, the display of the sonogram is

plainly        an        expressive          act      entitled         to      First        Amendment

protection. See, e.g., John Doe No. 1 v. Reed, 561 U.S. 186,

194-95        (2010)       (recognizing            First     Amendment            protections       for

signing a referendum petition); Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495, 501-02 (1952) (commercial film).

       The First Amendment not only protects against prohibitions

of   speech,        but     also      against       regulations            that    compel    speech.

“Since all speech inherently involves choices of what to say and

what     to     leave          unsaid,     one      important          manifestation         of     the

principle of free speech is that one who chooses to speak may

                                                    11
also decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian &

Bisexual     Grp.    of   Bos.,   515      U.S.   557,    573      (1995)   (citations

omitted) (internal quotation marks omitted); see also Wooley v.

Maynard, 430 U.S. 705, 714 (1977) (“[T]he First Amendment . . .

includes both the right to speak freely and the right to refrain

from speaking at all.”). A regulation compelling speech is by

its very nature content-based, because it requires the speaker

to change the content of his speech or even to say something

where   he   would    otherwise       be   silent.     Riley,      487   U.S.   at    795

(“Mandating     speech     that   a     speaker       would    not    otherwise       make

necessarily alters the content of the speech.”); Centro Tepeyac

v. Montgomery Cnty., 722 F.3d 184, 189 (4th Cir. 2013) (en banc)

(same). Compelled speech is particularly suspect because it can

directly affect listeners as well as speakers. Listeners may

have difficulty discerning that the message is the state’s, not

the    speaker’s,    especially       where     the    “speaker      [is]    intimately

connected with the communication advanced.” Hurley, 515 U.S. at

576.

       The   Requirement     is   quintessential             compelled      speech.    It

forces physicians to say things they otherwise would not say.

Moreover,     the    statement     compelled          here    is     ideological;       it

conveys a particular opinion. The state freely admits that the

purpose and anticipated effect of the Display of Real-Time View

Requirement is to convince women seeking abortions to change

                                           12
their minds or reassess their decisions. See Appellants’ Br. 29-

32.

       It may be true, as the Fifth Circuit has noted, that “the

required disclosures . . . are the epitome of truthful, non-

misleading information.” Tex. Med. Providers Performing Abortion

Servs. v. Lakey, 667 F.3d 570, 577-78 (5th Cir. 2012). But an

individual’s “right to tailor [his] speech” or to not speak at

all “applies . . . equally to statements of fact the speaker

would rather avoid.” Hurley, 515 U.S. at 573; see also Sorrel v.

IMS Health Inc., 131 S. Ct. 2653, 2667 (2011); Turner, 512 U.S.

at 645; Riley, 487 U.S. at 797-98. While it is true that the

words the state puts into the doctor’s mouth are factual, that

does   not   divorce   the   speech   from   its   moral    or     ideological

implications.    “[C]ontext     matters.”    Greater       Balt.    Ctr.   for

Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 286

(4th Cir. 2013) (en banc). Of course we need not go so far as to

say that every required description of a typical fetus is in

every context ideological. But this Display of Real-Time View

Requirement explicitly promotes a pro-life message by demanding

the provision of facts that all fall on one side of the abortion

debate -- and does so shortly before the time of decision when

the intended recipient is most vulnerable.

       The state protests that the Requirement does not dictate a

specific script and that the doctor is free to supplement the

                                      13
information with his own opinion about abortion. Reply Br. 14-

16. That is true; the state does not demand that the doctor use

particular words. But that does not mean that the Requirement is

“not designed to favor or disadvantage speech of any particular

content.”   Turner,   512    U.S.   at       652.    In   fact,      the   clear    and

conceded purpose of the Requirement is to support the state’s

pro-life position. That the doctor may supplement the compelled

speech with his own perspective does not cure the coercion --

the government’s message still must be delivered (though not

necessarily received).

      Content-based      regulations         of     speech        typically   receive

strict scrutiny. Id. at 642. The state, however, maintains that

the   Requirement   is    merely    a    regulation          of    the   practice   of

medicine that need only satisfy rational basis review. We turn

now to that contention. 3

                                        C.

      The state’s power to prescribe rules and regulations for

professions, including medicine, has an extensive history. See


      3
       Plaintiffs seem to suggest that the Display of Real-Time
View Requirement constitutes viewpoint discrimination and that
we should strike the provision down on that basis. See
Appellees’ Br. 2, 54. Because we find that the Requirement fails
even intermediate scrutiny, infra Part III, it is unnecessary
for us to definitively determine whether the compelled speech
here requires strict scrutiny. See Greater Balt., 721 F.3d at
288 (cautioning against “precipitately concluding that the
[provision] is an exercise of viewpoint discrimination”).


                                        14
Dent v. West Virginia, 129 U.S. 114, 122 (1889) (“[I]t has been

the practice of different states, from time immemorial, to exact

in many pursuits a certain degree of skill and learning upon

which   the    community         may    confidently        rely.”).    Licensing       and

regulation by the state “provide clients with the confidence

they require to put their health or their livelihood in the

hands of those who utilize knowledge and methods with which the

clients ordinarily have little or no familiarity.” King v. Gov.

of   N.J.,    767   F.3d    216,       232   (3d    Cir.    2014).    The     state   may

establish     licensing      qualifications,          Dent,     129    U.S.    at     122,

oblige the payment of dues to a professional organization for

purposes such as “disciplining members” and “proposing ethical

codes,” Keller, 496 U.S. at 16, and even set standards for the

conduct of professional activities, Barsky v. Bd. of Regents of

Univ. of State of N.Y., 347 U.S. 442, 449-50 (1954). In the

medical      context,      the    state      may    require     the    provision        of

information     sufficient         for    patients     to     give    their    informed

consent to medical procedures, see Canterbury v. Spence, 464

F.2d 772, 781 (D.C. Cir. 1972), and patients may seek damages

when    doctors     fail     to        follow     statutory    and    professionally

recognized norms, see, e.g, N.C. Gen. Stat. § 90-21.88. Simply

put, “[t]he power of government to regulate the professions is

not lost whenever the practice of a profession entails speech.”



                                             15
Lowe v. SEC, 472 U.S. 181, 228 (1985) (White, J., concurring in

the judgment).

     But    that   does    not    mean   that    individuals     simply     abandon

their First Amendment rights when they commence practicing a

profession. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833, 884 (1992) (plurality opinion) (“[T]he physician’s First

Amendment    rights       not    to   speak     are    implicated.”    (emphasis

added));    Lowe, 472 U.S. at 229-30 (White, J., concurring in the

judgment) (“But the principle that the government may restrict

entry into professions and vocations through licensing schemes

has never been extended to encompass the licensing of speech per

se or of the press.”). To the contrary, “speech is speech, and

it   must   be     analyzed      as   such    for     purposes   of   the    First

Amendment.” King, 767 F.3d at 229. There are “many dimensions”

to professionals’ speech. Fla. Bar v. Went For It, Inc., 515

U.S. 618, 634 (1995). And “[t]here are circumstances in which we

will accord speech by attorneys on public issues and matters of

legal representation the strongest protection our Constitution

has to offer.” Id. With all forms of compelled speech, we must

look to the context of the regulation to determine when the

state’s regulatory authority has extended too far. Riley, 487

U.S. at 796.

     When the First Amendment rights of a professional are at

stake, the stringency of review thus slides “along a continuum”

                                         16
from “public dialogue” on one end to “regulation of professional

conduct” on the other. Pickup v. Brown, 740 F.3d 1208, 1227,

1229 (9th Cir. 2013) (emphasis in original). Other circuits have

recently relied on the distinction between professional speech

and professional conduct when deciding on the appropriate level

of scrutiny to apply to regulations of the medical profession.

See King, 767 F.3d at 224-29, 233-37; Wollschlaeger v. Gov. of

Fla., 760 F.3d 1195, 1217-25 (11th Cir. 2014).

      The Display of Real-Time View Requirement resides somewhere

in the middle on that sliding scale. It is a regulation of

medical treatment insofar as it directs doctors to do certain

things in the context of treating a patient. In that sense, the

government        can   lay    claim    to    its   stronger   interest     in   the

regulation of professional conduct. But that is hardly the end

of   the   matter.      The    government’s       regulatory   interest     is   less

potent     in    the    context    of   a    self-regulating      profession     like

medicine. Moore-King v. Cnty. of Chesterfield, Va., 708 F.3d

560, 570 (4th Cir. 2013). Moreover, the Requirement is a clearly

content-based regulation of speech; it requires doctors to “say”

as well as “do.” As the district court found, the confluence of

these factors points toward borrowing a heightened intermediate

scrutiny        standard   used    in    certain     commercial    speech    cases.

Stuart, 992 F. Supp. 2d at 600. Thus, we need not conclusively

determine        whether      strict    scrutiny    ever   applies    in    similar

                                             17
situations,    because     in   this      case    “the      outcome   is   the   same

whether a special commercial speech inquiry or a stricter form

of judicial scrutiny is applied.” Sorrel, 131 S. Ct. at 2667.

                                          D.

     Insofar   as    our   decision        on    the   applicable     standard    of

review differs from the positions taken by the Fifth and Eighth

Circuits in cases examining the constitutionality of abortion

regulations under the First Amendment, we respectfully disagree.

Both courts relied heavily on a single paragraph in Casey:

     All that is left of petitioners' argument is an
     asserted First Amendment right of a physician not to
     provide information about the risks of abortion, and
     childbirth, in a manner mandated by the State. To be
     sure, the physician's First Amendment rights not to
     speak are implicated, see Wooley v. Maynard, 430 U.S.
     705 (1977), but only as part of the practice of
     medicine,    subject    to   reasonable    licensing and
     regulation by the State, cf. Whalen v. Roe, 429 U.S.
     589, 603 (1977). We see no constitutional infirmity in
     the   requirement    that  the   physician   provide the
     information mandated by the State here.

505 U.S. at 884; see also Lakey, 667 F.3d at 574-76; Planned

Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889, 893 (8th

Cir. 2012) (en banc) (“Rounds II”); Planned Parenthood Minn.,

N.D., S.D. v. Rounds, 530 F.3d 724, 733-35 (8th Cir. 2008) (en

banc)   (“Rounds    I”).   That      is   the    sum   of    the   First   Amendment

analysis in Casey.

     In     considering         an        ultrasound         display-and-describe

requirement similar to the one at issue here, the Fifth Circuit


                                          18
interpreted          Casey     as     employing     “the      antithesis            of    strict

scrutiny.” Lakey, 667 F.3d at 575. It further noted that in

Gonzales       v.     Carhart,       the    Supreme       Court     “upheld         a    state’s

‘significant role . . . in regulating the medical profession.’”

Lakey, 667 F.3d at 575-76 (quoting Gonzales v. Carhart, 550 U.S.

124,     157        (2007)).        Therefore,      the     Lakey     court             reasoned,

provisions such as the one at issue here -- that is, laws that

“require truthful, nonmisleading, and relevant disclosures,” id.

at     576   --      “do     not     fall   under     the     rubric       of       compelling

‘ideological’          speech       that    triggers        First    Amendment             strict

scrutiny,” id. The Eighth Circuit similarly drew from Casey and

Gonzales the rule that the First Amendment permits the state to

“use its regulatory authority to require a physician to provide

truthful,      non-misleading          information        relevant     to       a       patient’s

decision to have an abortion.” Rounds I, 530 F.3d at 734-35; see

also Rounds II, 686 F.3d at 893.

       With respect, our sister circuits read too much into Casey

and Gonzales. The single paragraph in Casey does not assert that

physicians          forfeit        their    First     Amendment        rights            in   the

procedures        surrounding         abortions,      nor    does     it    announce          the

proper level of scrutiny to be applied to abortion regulations

that compel speech to the extraordinary extent present here. The

plurality opinion stated that the medical profession is “subject

to reasonable licensing and regulation by the State” and that

                                              19
physicians’ speech is “part of the practice of medicine.” Casey,

505 U.S. at 884. But the plurality did not hold sweepingly that

all regulation of speech in the medical context merely receives

rational    basis    review.        Rather,     having   noted    the   physicians’

First Amendment rights and the state’s countervailing interest

in     regulating    the    medical      profession,     the     plurality    simply

stated     that     it     saw    “no    constitutional        infirmity     in    the

requirement that the physician provide the information mandated

by the State here.” Id. (emphasis added). That particularized

finding hardly announces a guiding standard of scrutiny for use

in every subsequent compelled speech case involving abortion.

       Furthermore,       the    Fifth   and    Eighth   Circuits’      reliance    on

Gonzales seems inapposite. Gonzales was not a First Amendment

case; the plaintiffs there did not bring free speech claims. See

Carhart v. Ashcroft, 331 F. Supp. 2d 805, 814 (D. Neb. 2004);

Planned Parenthood Fed’n of Am. v. Ashcroft, 320 F. Supp. 2d

957, 967 (N.D. Cal. 2004). Thus Gonzales does not elucidate the

First    Amendment       standard     applied    in   Casey.     Gonzales    provides

valuable insight into the relationship between the state and the

medical profession and the role the state may play in ensuring

that     women    are      properly      informed     before     making     what   is

indisputably a profound choice with permanent and potentially

harmful impacts. See infra Part III. But it says nothing about

the level of scrutiny courts should apply when reviewing a claim

                                           20
that       a   regulation   compelling    speech   in   the   abortion   context

violates        physicians’   First   Amendment    free   speech   rights.   The

fact that a regulation does not impose an undue burden on a

woman under the due process clause does not answer the question

of whether it imposes an impermissible burden on the physician

under the First Amendment. A heightened intermediate level of

scrutiny is thus consistent with Supreme Court precedent and

appropriately recognizes the intersection here of regulation of

speech and regulation of the medical profession in the context

of an abortion procedure. 4

                                         III.

       Under an intermediate standard of scrutiny, the state bears

the burden of demonstrating “at least that the statute directly

advances        a   substantial   governmental     interest     and   that   the

measure is drawn to achieve that interest.” Sorrel v. IMS Health

Inc., 131 S. Ct. 2653, 2667-68 (2011). This formulation seeks to

“ensure not only that the State's interests are proportional to

the resulting burdens placed on speech but also that the law


       4
       The state’s amici insist that the decision we reach today
will permit future litigants to use the First Amendment “as a
‘trump   card’  in   a  multitude   of  challenges  to  abortion
regulations, allowing abortion proponents to provoke a ‘back-
door,’ strict scrutiny approach” that will override Casey’s
undue burden standard. Law Professors’ Br. 27. We think this
concern is overdrawn. The great majority of abortion regulations
do not compel anyone’s speech, and the great majority of
litigants do not raise First Amendment concerns.


                                          21
does not seek to suppress a disfavored message.” Id. at 2668.

The court can and should take into account the effect of the

regulation on the intended recipient of the compelled speech,

especially    where    she        is   a      captive          listener.    See    Hill    v.

Colorado, 530 U.S. 703, 716-18 (2000); Va. State Bd. of Pharmacy

v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756-57

(1976); Greater Balt. Ctr. For Pregnancy Concerns, Inc. v. Mayor

of Balt., 721 F.3d 264, 286 (4th Cir. 2013) (en banc); cf. Lee

v. Weisman, 505 U.S. 577, 598 (1992).

     The    protection      of    fetal       life,       along      with   the    companion

interests    of     protecting         the      pregnant         woman’s    psychological

health and ensuring that “so grave a choice is well informed,”

Gonzales,    550    U.S.    at    159,     is     undeniably         an   important   state

interest. The Supreme Court has repeatedly affirmed the state’s

“important    and    legitimate        interest”          in    preserving,       promoting,

and protecting fetal life. Roe v. Wade, 410 U.S. 113, 162 (1973)

(quoted in Casey, 505 U.S. at 871); see also Gonzales, 550 U.S.

at 145. We shall presume for the purpose of this appeal that

this statute protects fetal life by increasing the likelihood

that a woman will not follow through on the decision to have an

abortion. Nonetheless, the means used to promote a substantial

state   interest     must    be    drawn        so   as    to    directly     advance     the

interest    without    impeding         too     greatly         on   individual     liberty

interests or competing state concerns. Sorrel, 131 S. Ct. at

                                             22
2667-68.    The      means   employed      here    are    far-reaching       --     almost

unprecedentedly so -- in a number of respects and far outstrip

the provision at issue in Casey. See Casey, 505 U.S. at 881.

This statutory provision interferes with the physician’s right

to   free    speech      beyond    the     extent    permitted       for    reasonable

regulation      of    the     medical     profession,        while    simultaneously

threatening       harm       to   the     patient’s       psychological           health,

interfering       with    the     physician’s       professional      judgment,       and

compromising the doctor-patient relationship. We must therefore

find the Display of Real-Time View Requirement unconstitutional.

                                           A.

       Before        addressing          the       provision’s        constitutional

infirmities, it is well worth identifying briefly the various

state interests at stake in this case. As we noted above, the

Supreme     Court      has    forcefully        reiterated     that     the       state’s

interest in protecting fetal life is important and profound.

This   interest       derives     from    the     state’s    general       interest    in

protecting      and      promoting       respect    for     life,     and     has    been

recognized      in    abortion     decisions       without    number.       See,    e.g.,

Gonzales, 550 U.S. at 158; Casey, 505 U.S. at 871; Greenville

Women’s Clinic v. Bryant, 222 F.3d 157, 165-66 (4th Cir. 2000).

We do not question the substantial state interest at work here.

       As part of its general interest in promoting the health of

its citizens, the state also has an interest in promoting the

                                           23
psychological health of women seeking abortions. Appellants’ Br.

17.   The   state    may    seek     to     protect     women    both    from       the

psychological    harm      of    “com[ing]       to     regret   their    choice,”

Gonzales, 550 U.S. at 159, as well as the psychological harm

from the process of obtaining an abortion itself. The Supreme

Court has also recognized a state interest in maintaining “the

integrity and ethics of the medical profession,” which includes

promoting a healthy doctor-patient relationship, Washington v.

Glucksberg, 521 U.S. 702, 731 (1997); see also Gonzales, 550

U.S. at 157, and respecting physicians’ professional judgment,

see Casey, 505 U.S. at 884.

      However, that important state interests are implicated in

the   abortion   context        is   only      the    starting   point    for       our

analysis.   Though    physicians       and      other    professionals        may    be

subject to regulations by the state that restrict their First

Amendment    freedoms      when      acting      in     the   course     of     their

professions, professionals do not leave their speech rights at

the office door. See Lowe v. SEC, 472 U.S. 181, 229-30 (1985)

(White, J., concurring in the judgment). Any state regulation

that limits the free speech rights of professionals must pass

the requisite constitutional test. The Display of Real-Time View

Requirement must directly advance an important state interest in

a manner that is drawn to that interest and proportional to the

burden placed on the speech. See Sorrel, 131 S. Ct. at 2667-68.

                                          24
                                              B.

       North Carolina contends that the Display of Real-Time View

Requirement is merely “reasonable . . . regulation by the State”

of the medical profession that does not violate the physicians’

First    Amendment        rights        any        more     than     informed        consent

requirements        do.   Appellants’         Br.     22-25        (quoting     Tex.     Med.

Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 575

(5th    Cir.     2012)     (quoting      Casey,           505   U.S.   at      882)).    The

requirements        the   provision       imposes          on   physicians,         however,

resemble neither traditional informed consent nor the variation

found in the Pennsylvania statute at issue in Casey. The North

Carolina statute goes much further, imposing additional burdens

on the physicians’ free speech and risking the compromise of

other important state interests.

       Traditional informed consent requirements derive from the

principle of patient autonomy in medical treatment. Grounded in

self-determination, obtaining informed consent prior to medical

treatment      is    meant   to    ensure          that     each     patient       has   “the

information         she   needs    to    meaningfully            consent      to     medical

procedures.” Am. Coll. of Obstetricians & Gynecologists & the

Am. Med. Ass’n (“ACOG & AMA”) Br. 5; see also AMA, Op. 8.08 –

Informed Consent (2006). As the term suggests, informed consent

consists    of      two   essential      elements:          comprehension          and   free

consent. ACOG & AMA Br. 7; ACOG, Comm. Op. No. 439 - Informed

                                              25
Consent, at 2 (2012). Comprehension requires that the physician

convey adequate information about the diagnosis, the prognosis,

alternative treatment options (including no treatment), and the

risks and likely results of each option. ACOG & AMA Br. 7; ACOG,

Comm. Op. No. 439, at 3, 5; see also J.A. 359 (declaration of

Dr. Anne Drapkin Lyerly); Canterbury v. Spence, 464 F.2d 772,

780-81   (D.C.    Cir.    1972).       Physicians       determine       the    “adequate”

information      for     each    patient        based     on     what    a     reasonable

physician would convey, what a reasonable patient would want to

know, and what the individual patient would subjectively wish to

know   given     the   patient’s       individualized           needs   and    treatment

circumstances. ACOG, Comm. Op. No. 439, at 5. Free consent, as

it suggests, requires that the patient be able to exercise her

autonomy free from coercion. Id. at 3, 5. It may even include at

times the choice not to receive certain pertinent information

and to rely instead on the judgment of the doctor. Id. at 7;

ACOG & AMA Br. 8. The physician’s role in this process is to

inform and assist the patient without imposing his or her own

personal    will       and      values     on     the     patient.        J.A.     359-60

(declaration of Dr. Anne Drapkin Lyerly); ACOG, Comm. Op. No.

439, at 3. The informed consent process typically involves a

conversation      between       the    patient,         fully     clothed,       and   the

physician   in    an   office     or     similar    room       before    the    procedure

begins. ACOG & AMA Br. 8, 23; ACOG, Comm. Op. No. 439, at 4.

                                           26
Once the patient has received the information she needs, she

signs a consent form, and treatment may proceed. See, e.g., N.C.

Gen. Stat. § 90-21.13(b).

       The Pennsylvania statute challenged in Casey prescribes a

modified     form   of    informed      consent      for     abortions.         To    provide

informed consent, the statute first requires the physician to

orally inform the woman of the nature of the abortion procedure,

the    “risks    and     alternatives         to    the    procedure . . . that               a

reasonable      patient    would       consider      material       to    the    decision”

whether to have an abortion, the risks of carrying the child to

term, and the “probable gestational age of the unborn child”

when   the    abortion     is     to    be    performed.      18     Pa.    Cons.       Stat.

§ 3205(a)(1). The physician must give this information at least

twenty-four     hours     prior    to    the      abortion.    Id.       Aside       from   the

gestational age of the fetus, this information is the same type

that would be required under traditional informed consent for

any medical procedure.

       The   statute     continues      on,       however,    to    require       that      the

physician must inform the woman, at least twenty-four hours in

advance,     that   the    state       prints      materials       that    describe         the

unborn child, and a copy must be provided to her if she wants

it. 18 Pa. Cons. Stat. § 3205(a)(2)-(3). Finally, the statute

requires the physician to provide some additional information

about financial and other assistance that may be available from

                                             27
the state and the father. 18 Pa. Cons. Stat. § 3205(a)(2). These

provisions          deviate    only    modestly       from     traditional        informed

consent.       They     also     closely      resemble       the     informed      consent

provisions of North Carolina’s Woman’s Right to Know Act that

are not under challenge in this appeal. N.C. Gen. Stat. § 90-

21.82(1)-(2).          The      challenged         Display     of        Real-Time      View

Requirement, N.C. Gen. Stat. § 90-21.85, however, reaches beyond

the modified form of informed consent that the Court approved in

Casey. In so doing, it imposes a virtually unprecedented burden

on    the     right    of     professional        speech     that    operates      to   the

detriment of both speaker and listener.

                                             C.

       The     burdens        trace   in     part    from     deviations         from   the

traditions of informed consent. The most serious deviation from

standard practice is requiring the physician to display an image

and provide an explanation and medical description to a woman

who    has      through        ear    and    eye     covering       rendered       herself

temporarily deaf and blind. This is starkly compelled speech

that impedes on the physician’s First Amendment rights with no

counterbalancing promotion of state interests. The woman does

not receive the information, so it cannot inform her decision.

In    fact,    “[t]he       state’s    own   expert     witness      agrees      that   the

delivery of the state’s message in these circumstances does not

provide       any     information      to    the     patient       and    does    not    aid

                                             28
voluntary and informed consent.” Stuart v. Loomis, 992 F. Supp.

2d 585, 602 (M.D.N.C. 2014). And while having to choose between

blindfolding and earmuffing herself or watching and listening to

unwanted information may in some remote way influence a woman in

favor of carrying the child to term, forced speech to unwilling

or incapacitated listeners does not bear the constitutionally

necessary connection to the protection of fetal life. Moreover,

far   from       promoting    the    psychological         health    of    women,    this

requirement risks the infliction of psychological harm on the

woman    who     chooses     not    to    receive   this    information.      She    must

endure    the     embarrassing       spectacle      of     averting    her    eyes    and

covering her ears while her physician -- a person to whom she

should be encouraged to listen -- recites information to her. We

can   perceive      no   benefit      to    state   interests       from   walling    off

patients and physicians in a manner antithetical to the very

communication that lies at the heart of the informed consent

process.

      The      constitutional       burden     on   the    physicians’       expressive

rights      is    not    lifted      by    having    a     willing     listener.      The

information the physician had to convey orally in Casey was no

more than a slight modification of traditional informed consent

disclosures. The information conveyed here in the examining room

more closely resembles the materials that in Casey were provided

by the state in a pamphlet. Casey, 505 U.S. at 881. A physician

                                             29
in     Pennsylvania          need     only      inform       the     patient      that    such

information is available and, if requested, provide her with a

copy     of     the     state-issued            pamphlet.       18      Pa.     Cons.     Stat.

§ 3205(a)(2)(i) & (a)(3). Informing a patient that there are

state-issued materials available is not ideological, because the

viewpoint conveyed by the pamphlet is clearly the state’s -- not

the physician’s. It is no wonder then that the Casey court found

no First Amendment infirmities in that requirement. By contrast,

the North Carolina statute compels the physician to speak and

display       the   very     information        on    a     volatile     subject   that    the

state     would       like     to     convey.         See     N.C.      Gen.    Stat.     § 90-

21.85(a)(2)-(4).           The      coercive         effects       of    the     speech    are

magnified when the physician is compelled to deliver the state’s

preferred       message      in     his   or    her    own    voice.     This    Requirement

treads far more heavily on the physicians’ free speech rights

than the state pamphlet provisions at issue in Casey.

       Though the information conveyed may be strictly factual,

the     context       surrounding         the    delivery          of    it    promotes    the

viewpoint the state wishes to encourage. As a matter of policy,

the state may certainly express a preference for childbirth over

abortion, Webster v. Reprod. Health Servs., 492 U.S. 490, 511

(1989), and use its agents and written materials to convey that

message. However the state cannot commandeer the doctor-patient

relationship to compel a physician to express its preference to

                                                30
the    patient.      As   the    district       court    noted,     “[b]y       requiring

providers to deliver this information to a woman who takes steps

not to hear it or would be harmed by hearing it, the state has

. . . moved from ‘encouraging’ to lecturing, using health care

providers as its mouthpiece.” Stuart, 992 F. Supp. 2d at 609.

Transforming        the   physician      into    the    mouthpiece       of    the     state

undermines the trust that is necessary for facilitating healthy

doctor-patient         relationships       and,        through    them,        successful

treatment outcomes. See Am. Pub. Health Ass’n (“APHA”) Br. 9-10.

The patient seeks in a physician a medical professional with the

capacity      for    independent       medical     judgment       that     professional

status implies. The rupture of trust comes with replacing what

the doctor’s medical judgment would counsel in a communication

with   what    the     state    wishes     told.   It     subverts       the    patient’s

expectations when the physician is compelled to deliver a state

message bearing little connection to the search for professional

services that led the patient to the doctor’s door.

       Furthermore, by failing to include a therapeutic privilege

exception, the Display of Real-Time View Requirement interferes

with    the     physician’s           professional        judgment       and      ethical

obligations. The absence of a therapeutic exception means that

the state has sought not only to control the content of the

physician’s         speech,     but   to   dictate       its     timing.       Under    the

Requirement, the physician must display and describe the fetus

                                           31
simultaneously with the ultrasound procedure, and he must do

this at least four and not more than seventy-two hours prior to

the    abortion         procedure.       See   N.C.    Gen.     Stat.       § 90-21.85(a).

Therapeutic privilege, however, permits physicians to decline or

at least wait to convey relevant information as part of informed

consent because in their professional judgment delivering the

information to the patient at a particular time would result in

serious psychological or physical harm. ACOG, Comm. Op. 439, at

7. It is an important privilege, albeit a limited one to be used

sparingly.     See        id.    It     protects     the    health     of    particularly

vulnerable or fragile patients, and permits the physician to

uphold his ethical obligations of benevolence.

       The Casey court found it relevant that the Pennsylvania

statute contained a therapeutic exception so that it “does not

prevent      the     physician         from    exercising      his     or    her   medical

judgment.”     505        U.S.    at     883-84.     North     Carolina      by    contrast

requires the physician to “[d]isplay the images” and “[p]rovide

a simultaneous explanation of what the display is depicting”

along   with       “a    medical        description    of     the     images,”     with    no

exception. N.C. Gen. Stat. § 90-21.85(a)(2)-(4). The lack of a

provision similar to Pennsylvania’s in North Carolina’s statute

runs    contrary         to     the     state’s     interest     in    “protecting        the

integrity and ethics of the medical profession,” Gonzales, 550

U.S.    at    157,       and     more     generally    to      its    interest     in     the

                                               32
psychological        and   physical       well-being         of   the     affected     women.

Particularly for women who have been victims of sexual assaults

or whose fetuses are nonviable or have severe, life-threatening

developmental        abnormalities,        having       to    watch       a    sonogram   and

listen to a description of the fetus could prove psychologically

devastating. See J.A. 332-33 (declaration of Dr. Gretchen S.

Stuart);    Appellees’       Br.    12-13;       APHA    Br.       8-9.       Requiring   the

physician       to    provide       the     information            regardless        of   the

psychological or emotional well-being of the patient, see N.C.

Gen.    Stat.   §§    90-21.85     &   90-21.86,        can       hardly      be   considered

closely drawn to those state interests the provision is supposed

to promote.

       In sum, though the State would have us view this provision

as simply a reasonable regulation of the medical profession,

these    requirements        look      nothing      like          traditional        informed

consent, or even the versions provided for in Casey and in N.C.

Gen. Stat. § 90-21.82. As such, they impose an extraordinary

burden on expressive rights. The three elements discussed so far

-- requiring the physician to speak to a patient who is not

listening, rendering the physician the mouthpiece of the state’s

message, and omitting a therapeutic privilege to protect the

health of the patient -- markedly depart from standard medical

practice.

                                            D.

                                            33
        Other aspects of the Requirement are equally unusual. As

described       above,      informed      consent         frequently       consists       of    a

fully-clothed         conversation       between         the   patient      and   physician,

often in the physician’s office. It is driven by the “patient’s

particular needs and circumstances,” J.A. 388 (declaration of

Dr. Amy Weil), so that the patient receives the information he

or     she    wants    in   a       setting    that       promotes     an    informed       and

thoughtful choice.

       This provision, however, 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.

Appellees’       Br.     13;    APHA     Br.        8.    Informed     consent      has        not

generally been thought to require a patient to view images from

his or her own body, ACOG & AMA Br. 7, 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.” N.C.

Gen.    Stat.     § 90-21.85(a)(3),           (b).       Rather     than    engaging      in     a

conversation calculated to inform, the physician must continue

talking       regardless       of    whether    the       patient     is    listening.         See

Stuart, 992 F. Supp. 2d at 590 & 602 n.34. The information is

provided irrespective of the needs or wants of the patient, in

direct       contravention      of     medical       ethics     and   the    principle          of

patient autonomy. “[F]orcing this experience on a patient over

her objections” in this manner interferes with the decision of a

                                               34
patient    not        to     receive       information           that        could      make     an

indescribably difficult decision even more traumatic and could

“actually cause harm to the patient.” J.A. 330 (declaration of

Dr. Gretchen S. Stuart). And it is intended to convey not the

risks and benefits of the medical procedure to the patient’s own

health,    but       rather      the   full           weight    of     the       state’s      moral

condemnation. Though the state is plainly free to express such a

preference for childbirth to women, it is not the function of

informed consent to require a physician to deliver the state’s

preference in a setting this fraught with stress and anxiety.

       There     are       few     absolutes           in    the      difficult         area     of

professional regulation and professional expression. But there

do exist constraints on the permissible interference with the

doctor-patient relationship; there are limits on state attempts

to compel physicians to deliver its message, especially when

that    message       runs       counter     to        the     physician’s         professional

judgment       and    the     patient’s          autonomous          decision         about    what

information          she     wants.       Though         states       may        surely       enact

legislation      to    ensure      that      a   woman’s        choice      is    informed      and

thoughtful when she elects to have an abortion, states cannot so

compromise       physicians’           free           speech       rights,         professional

judgment, patient autonomy, and other important state interests

in the process. The means here exceed what is proper to promote

the    undeniably      profound        and       important       purpose         of    protecting

                                                 35
fetal    life.    See,   e.g.,    Sorrel,          131   S.     Ct.    at   2667-68,     2670

(holding that Vermont statute unconstitutionally burdened speech

because “[w]hile Vermont’s stated policy goals may be proper,

§ 4631(d)      does    not   advance    them       in    a     permissible      way”   under

intermediate scrutiny).

                                             IV.

       “The right to speak and the right to refrain from speaking

are     complementary        components           of     the     broader       concept     of

‘individual freedom of mind.’” Wooley v. Maynard, 430 U.S. 705,

714 (1977) (quoting W. Va. State Bd. of Educ. v. Barnette, 319

U.S.    624,    637    (1943)).      Regulations          which       compel    ideological

speech “pose the inherent risk that the Government seeks not to

advance a legitimate regulatory goal, but to suppress unpopular

ideas or information or manipulate the public debate through

coercion rather than persuasion.” Turner Broad. Sys., Inc. v.

FCC, 512 U.S. 622, 641 (1994). Abortion may well be a special

case because of the undeniable gravity of all that is involved,

but it cannot be so special a case that all other professional

rights and medical norms go out the window. While the state

itself    may     promote      through        various          means    childbirth       over

abortion, it may not coerce doctors into voicing that message on

behalf    of     the   state    in     the    particular          manner       and   setting

attempted here. The district court did not err in concluding

that § 90-21.85 of the North Carolina General Statutes violates

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the First Amendment and in enjoining the enforcement of that

provision. Its judgment is in all respects affirmed.



                                                       AFFIRMED




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