Bench Memos

Judicial Restraint Undetectable by Ultrasound?

Fourth Circuit judge (and Reagan appointee) J. Harvie Wilkinson III presents himself as a champion of judicial restraint, so I’m surprised and disappointed to read his panel opinion yesterday holding that a North Carolina statute that (in his summary) “requires physicians to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions” violates the First Amendment speech rights of abortionists.

To be clear, I am certainly not maintaining that principles of judicial restraint always forbid striking down legislation. What, on first read at least, I find troubling is that Wilkinson, adopting a vague and manipulable standard of review, seems to make all sorts of unforced twists and turns to reach his destination. In so doing, he rejects contrary rulings from the Fifth Circuit and the Eighth Circuit.


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