In a 2-1 ruling, the U.S. Court of Appeals for the Fourth Circuit today reversed its earlier ruling that a 2011 North Carolina law allowing specialty license plates that say “Choose Life,” but not an alternative plate with a message supporting reproductive freedom, was unconstitutional. In a ruling today, the court now says North Carolina is under no obligation to offer a pro-choice plate, and it sent the case back to the district court to enter judgement for the state.
The North Carolina law had been challenged by the American Civil Liberties Union (ACLU) of North Carolina on behalf of pro-choice drivers.
“It’s very disappointing that North Carolina can now deny drivers on one side of this contentious issue an equal ability to express their views,” said Sarah Preston, acting Executive Director of the ACLU of North Carolina. “Regardless of the court’s ruling, the General Assembly should finally do the right thing and allow citizens on both sides of this controversial issue to purchase specialty license plates supporting their views.”
The U.S. Supreme Court had asked the Fourth Circuit to reconsider its ruling in light of the Supreme Court’s 2015 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc., which found that Texas’s specialty license plates were government speech, and the state was therefore able to reject a proposal for plates featuring a Confederate battle flag.
During the 2011 legislative session, the North Carolina General Assembly passed House Bill 289, which authorized the issuance of a “Choose Life” license plate. However, the legislature repeatedly refused to authorize a plate that supported the countervailing position in favor of reproductive freedom. Six amendments were proposed in the legislature to authorize an additional new plate that stated either, “Trust Women. Respect Choice.” or simply “Respect Choice.” The legislature rejected all six amendments.
The ACLU of North Carolina Legal Foundation filed a federal court challenge to the law that same year on behalf of North Carolinians seeking a specialty license plate that supports a woman’s right to reproductive freedom. The lawsuit argued the state’s plan violated the First Amendment by creating an avenue for private speech but opening it to only one side of a contentious issue.
U.S. District Judge James C. Fox temporarily blocked production of the license plates before striking down the law in December 2012, writing that “the State’s offering of a Choose Life license plate in the absence of a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment.”
North Carolina appealed that ruling to the Fourth Circuit, which affirmed the lower court’s ruling in February 2014. “Issuing a ‘Choose Life’ specialty license plate while refusing to issue a pro-choice specialty license plate constitutes blatant viewpoint discrimination squarely at odds with the First Amendment,” the court ruled in a unanimous 3-0 opinion.
Today’s ruling reverses that earlier opinion.