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Abortion Counseling and the First Amendment: Open Questions After Webster
Published online by Cambridge University Press: 24 February 2021
Extract
The Missouri statute at issue in Webster v. Reproductive Health Services, contained three related prohibitions on speech about abortion. The statute: (1) prohibited public employees from encouraging or counseling a woman to have an abortion except where necessary to save her life; (2) banned such counseling in a public facility; and (3) prohibited the expenditure of public funds for such a purpose in any context. In essence, Missouri's statute attempted to censor the speech of physicians and counselors, even where an abortion would be medically indicated though not necessary to save the woman's life. The statutory scheme thus invades the doctor-patient relationship, jeopardizes free speech and access to medical information, and seeks to manipulate and mislead women who are considering the appropriate course of action for their unwanted pregnancies.
- Type
- The Webster Amicus Curiae Briefs: Perspectives on the Abortion Controversy and the Role of the Supreme Court
- Information
- Copyright
- Copyright © American Society of Law, Medicine and Ethics and Boston University 1989
Footnotes
†
This is a summary of the “Brief Amici Curiae of the American Civil Liberties Union, the National Education Association, People for the American Way, the Newspaper Guild, the National Writers' Union and the Fresno Free College Foundation.” Substantial portions of this article are excerpted directly from the brief. The brief may be found in full at Congressional Information Service Microfiche, United States Supreme Court Records and Briefs, Webster v. Reproductive Health Services, Card No. 39.
References
1 109 S. Ct. 3040 (1989).
2 Mo. Rev. Stat. § 188.210 (1989).
3 Id. at § 188.215.
4 Id. at § 188.205. Though the Eighth Circuit invalidated all three of these statutory provisions, Missouri chose to appeal only the latter. See Webster, 109 S. Ct. at 3053.
5 The drafters of the Missouri statute specifically omitted the phrase “or health” from each of the statutory provisions. See Mo. Rev. Stat. §§ 188.205, 188.210, 188.215 (1989).
The record at trial in the Webster case makes clear that abortion may be medically indicated “where there are gross fetal anomalies …, or where maternal health may be compromised by cardiac disease, recurrent cerebral vascular accidents (CVAs or strokes), diabetic retinopathy (which threatens blindness) and renal disorders.” Abortions may also be indicated in the presence of diabetes, cancer or early amniotic sac rupture. Reproductive Health Servs. v. Webster, 662 F. Supp. 407, 427 n.52 (W.D. Mo. 1987).
6 Under Missouri's statutory scheme, a health care professional employed in a Missouri state hospital, or subsidized by the state, must violate the deepest ethical precepts of her profession. These precepts, established by the American College of Obstetricians and Gynecology (ACOG) and previously relied upon by the Supreme Court, see, e.g., City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 429 n.11, 437 n.26, 449 n.40, 450 n.43 (1983), state that, “[i]n the event of an unwanted pregnancy, the physician should counsel the patient about [all] her options….” ACOG, Standards for Obstetric-Gynecologic Services 57 (1985). “Counseling directed solely toward either promoting or preventing abortion does not sufficiently reflect the full nature of the problem or the range of options to which the patient is entitled. Appropriately balanced counseling, combined with the available and accessible facilities, provides the minimum base for the opportunity to make a truly informed choice.” ACOG, Statement of Policy, Further Ethical Considerations in Induced Abortion, ¶4. Further, the American Medical Association (AMA) itself requires physicians “to present the medical facts accurately to the patient or to the individual responsible for his care and to make recommendations for management in accordance with good medical practice.” American Med. Ass'n, Current Opinions of the Council on Ethical and Judicial Affairs § 8.07 (1986) (emphasis added). Health care providers who fail to adhere to these principles risk professional censure or civil liability.
7 See Bigelow v. Virginia, 421 U.S. 809 (1975); see also In re Primus, 436 U.S. 412 (1978). Indeed, where the constitutionally protected right to choose abortion is concerned, this Court has struck down any attempt to invade or “strait-jacket” the doctor-patient dialogue under the fourteenth amendment. Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 762 (1986); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 443-45 (1983); Poe v. Ullman, 367 U.S. 497, 513 (1961) (Douglas, J., dissenting) (“The right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion.“).
8 See, e.g., Meese v. Keene, 481 U.S. 465 (1987); see generally Yudof, , When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 Tex. L. Rev. 863 (1979)Google Scholar; Shiffrin, , Government Speech, 27 UCLA L. Rev. 565 (1980)Google Scholar.
9 Missouri's decision to appeal the invalidation of only one of its three prohibitions on speech was a strategic attempt to facilitate an artificial labeling of this case as a “funding case.” The state sought to obscure the fact that, as applied to doctors and nurses in the Missouri public health system, a ban on the use of “public funds” to counsel about abortion is indistinguishable from a ban on the speech of doctors who, like the named plaintiffs, are employed and therefore paid by the State of Missouri. To the extent that a doctor is paid with “public funds,” she is as bound by the Missouri Revised Statute section 188.205 as by section 188.210.
10 E.g., Rankin v. McPherson, 483 U.S. 378, (1987); Connick v. Myers, 461 U.S. 138 (1983); Givhan v. Western Line Consol. School Dist., 439 U.S. 410 (1979); Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Pickering v. Board of Educ, 391 U.S. 563 (1968); cf. Wieman v. Updegraf, 344 U.S. 183, 195 (1952) (Frankfurter, J., concurring) (academic freedom of state university professors protected).
11 Lower courts consistently apply the analysis of Pickering to speech occurring on the job or in the course of employment. See Roth v. Veteran's Admin, of United States, 856 F.2d 1401 (9th Cir. 1988); Greenberg v. Kmetko, 811 F.2d 1057 (7th Cir. 1987); Patteson v. Johnson, 787 F.2d 1245 (8th Cir. 1986).
12 E.g, Rankin, 438 U.S. at 389; Givhan, 439 U.S. at 413-16.
13 Rankin, 438 U.S. at 397-98 (Scalia, J., dissenting).
14 The Supreme Court has considered also the “content, form, and context” of the speech and whether it is of “public concern.” See Connick, 461 U.S. at 147-48. The freedom of a doctor to advise a patient within the scope of professional judgment and to provide medical care to low-income women consistent with prevailing standards is, undeniably, of paramount public concern. The public interest in the availability of information about abortion is evident: the public health consequences of denying women this information are increased maternal morbidity and mortality due to delayed abortion, unwanted parenthood and increased morbidity and mortality due to health-endangering pregnancy and childbirth. See Cates, & Grimes, , Morbidity and Mortality of Abortions in the United States, in Abortion and Sterilization: Medical and Social Aspects 155 (Hodgson, J. ed. 1981)CrossRefGoogle Scholar; Alan Guttmacher Institute, Teenage Pregnancy: The Problem that Hasn't Gone Away 16 (1981); E. Gilbert, High Risk Pregnancy and Delivery: Nursing Perspectives (F. Arias ed. 1986); S. Romney, M. Gray, A. Little, J. Merill, E. Quilligan & R. Standler, Gynecology & Obstetrics: The Health Care of Women 56-60, 840-45 (2d ed. 1981); see also Johnston v. Koppes, 850 F.2d 594 (9th Cir. 1988).
When speech of public concern occurs on the job, the Court has looked as well to the governmental employer's “interest in the effective and efficient fulfillment of its responsibilities to the public,” Connick, 461 U.S. at 150, in short, to the government employer's “legitimate purpose in ‘promot[ing] efficiency and integrity in the discharge of official duties …. ‘ “ Id. at 150-51 (emphasis added) (citation omitted); see also Pickering, 391 U.S. at 570-73. There is no meritorious argument that the speech prohibited by Missouri would disrupt employee relations in the workplace or interfere with a state health care institution's ability to fulfill its public function. The speech in question is not only consistent with but necessary to the “integrity of the discharge” of the publicly employed physician's duties.
15 Cases protecting academic freedom within the nation's publicly funded universities provide additional authority for the unconstitutionality of Missouri's speech restrictions. E.g., Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Shelton v. Tucker, 364 U.S. 479, 487 (1960); Sweezy v. New Hampshire, 354 U.S. 234, 261-62 (1957) (Frankfurter, J., concurring); Wieman v. Updegraf, 344 U.S. 183, 195-97 (1952) (Frankfurter, J., concurring); see also Edwards v. Aguillard, 482 U.S. 578 (1987); Epperson v. Arkansas, 393 U.S. 97 (1968); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). As Justice Frankfurter recognized in his concurrence in Sweezy, the state's power to regulate job-related, publicly funded speech, broad as it is, cannot destroy the freedom of a public educator to carry out the essence of his public function in a state university — the teaching of open minds. Sweezy, 354 U.S. at 261-63. Similarly, Missouri's power to regulate the speech of its public employees cannot destroy the freedom of a public health professional to carry out the essence of her public function — the provision of accurate and complete medical advice. Indeed, as strong as Justice Frankfurter's case for “academic freedom” may have been, the first amendment argument in favor of “medical freedom” is even stronger.
16 See Yudof, supra note 8, at 863; see also Benshoof, , The Chastity Act: Government Manipulation of Abortion Information and the First Amendment, 101 Harv. L. Rev. 1916, 1931-37 (1988)CrossRefGoogle Scholar; but see Hirt, , Why the Government is Not Required to Subsidize Abortion Counseling and Referral, 101 Harv. L. Rev. 1895 (1988)CrossRefGoogle ScholarPubMed.
17 See, e.g., Cohen v. California, 403 U.S. 15, 24 (1971) (“Putting the decision as to what views shall be voiced largely into the hands of each of us … [reflects] the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.“).
18 Government officials need not subsidize the opposition every time the government speaks, but the first amendment precludes the government from taking unfair advantage of its incumbency to advance its own positions. Thus, for example, government funds may not be used to pay for campaign activities. See generally Yudof, supra note 8; Shiffrin, supra note 8; see Block v. Meese, 793 F.2d 1303, 1312-14 (D.C Cir.), cert, denied, 478 U.S. 1021 (1986).
19 See Broadrick v. Oklahoma, 413 U.S. 601 (1973); United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973); United Public Workers v. Mitchell, 330 U.S. 75 (1947).
20 See generally West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); Cammarano v. United States, 358 U.S. 498 (1959).
21 468 U.S. 364 (1984).
22 Id. at 384. Significantly, the four Justices who dissented in FCC did so because they viewed the editorializing ban as viewpoint neutral, not because they believed the government could condition a benefit on a viewpoint-discriminatory limit on speech. Id. at 407 (Rehnquist, J., dissenting) (“In no sense can it be said that Congress has prohibited only editorial views of one particular ideological bent.“).
23 481 U.S. 221 (1987).
24 Id. at 230; see also id. at 237 (Scalia, J., dissenting) (“[A] more stringent, prophylactic rule is appropriate … when the subsidy pertains to the expression of a particular viewpoint on a matter of political concern.“); Regan v. Taxation Without Representation, 461 U.S. 540, 548 (1983) (“The case would be different if Congress were to discriminate invidiously in its subsidies in such a way as to ‘ai[m] at the suppression of dangerous ideas.’ “) (citation omitted); cf. Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 811-13 (1985) (plurality opinion) (remanding for determination whether exclusion of certain speech from a nonpublic forum was “in reality a facade for viewpoint-based discrimination“).
25 See also Gay & Lesbian Law Students Ass'n v. Gohn, 850 F.2d 361, 366-68 (8th Cir. 1988) (public university may not withhold funding from student group because it “dislikes their ideas“); Bullfrog Films v. Wick, 847 F.2d 502, 509-10 & n.11 (9th Cir. 1988) (USIA may not deny certification or exemption from import duties for films because of content or viewpoints expressed in them); Big Mama Rag, Inc. v. United States, 631 F.2d 1030, 1040 (D.C. Cir. 1980) (IRS may not deny tax exemptions under standards so imprecise that they risk viewpoint or content-based discrimination in allocation of benefits); American Council of the Blind v. Boorstin, 644 F. Supp. 811, 815-16 (D.D.C. 1986) (Library of Congress may not stop subsidized production of braille editions of Playboy because of its sexual content); see generally Karst, , Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20 (1975)CrossRefGoogle Scholar; Stephan, , The First Amendment and Content Discrimination, 68 Va. L. Rev. 203 (1982)Google Scholar; Stone, , Content Regulation and the First Amendment, 25 WM. & Mary L. Rev. 189 (1983)Google Scholar.
26 In Harris v. McRae, 448 U.S. 297, 311 (1980) and Maher v. Roe, 432 U.S. 464, 479-80 (1977), the Supreme Court held that the government need not reimburse the medical costs of certain abortions. However, the government cannot dispose benefits in a way that inhibits a party's use of its own funds to exercise a fundamental right. FCC v. League of Women Voters, 468 U.S. 364, 400 (1984). Moreover, first amendment protection of free speech and information exists independent of the right to privacy at issue in McRae and Maher.
27 Webster, 109 S. Ct. at 3053-54.
28 Because Missouri chose not to appeal the Eighth Circuit's invalidation of the provisions banning the counseling or encouraging of abortion by public employees or in public facilities, id. at 3053, the court of appeals’ affirmance of the district court's injunction against enforcement of these provisions remains intact. See Reproductive Health Servs. v. Webster, 851 F.2d 1071, 1077-80 (8th Cir. 1988) (abortion-related speech restrictions applicable to public employees or in public facilities violate first and fourteenth amendments), rev'd on other grounds, 109 S. Ct. 3040 (1989).
29 The state argued that the provision on appeal reached only the conduct of state fiscal officers charged with expending public funds. The Court agreed. Webster, 109 S. Ct. at 3053; id. at 3060 (O'Connor, J., concurring).
30 E.g., id. at 3060 (O'Connor, J., concurring); see also id. at 3069 n.1 (Blackmun, Brennan, Marshall, J.J., concurring in part).
31 Of course, the Court's ruling in Webster limits women's exercise of their rights in other respects such as by upholding Missouri's ban on abortion not necessary to save the life of the mother in public hospitals. Id. at 3052-53.
32 Cf. id. at 3079 (Blackmun, J., dissenting).
33 These regulations prohibit all non-pejorative speech about and referral for abortion and physicians are simultaneously compelled to refer all pregnant patients to prenatal care. See 42 C.F.R. §§ 59.2, .5, .7, .8, .9, .10 (1988). Challenges to the legality of these regulations are currently pending in four cases in three United States Courts of Appeals. New York v. Bowen, 690 F. Supp. 1261 (S.D.N.Y.), appeal pending Nos. 88-6204, 06 (2nd Cir.) (consolidated with Rust v. Bowen); Planned Parenthood Fed'n of Am. v. Bowen, 680 F. Supp. 1465 (preliminary injunction), 687 F. Supp. 540 (permanent injunction) (D. Colo. 1988), appeal pending No. 88-2251 (10th Cir.); Commonwealth v. Bowen, 679 F. Supp. 137 (D. Mass.), aff'd, No. 88-1279 (1st Cir. May 8, 1989), vacated and reh'g en banc pending No. 88-1279 (1st Cir. Aug. 9, 1989).
34 In 1984, the White House announced a new and more stringently anti-abortion population “policy” at the United Nations International Conference on Population in Mexico City. To implement this “policy,” the United States Agency for International Development has begun to require, as a condition of grant eligibility, that domestic population aid organizations not sub-grant to overseas family planning programs that perform, promote or even provide information and advice about the benefits and availability of abortion. Challenges to the constitutionality of and statutory authority for the requirement are pending. See DKT Memorial Fund, Ltd. v. Agency for Inter'l Dev., 630 F. Supp. 238 (D.D.C. 1986), rev'd and remanded, 810 F.2d 1236 (D.C. Cir. 1987), on remand, 691 F. Supp. 394 (D.D.C. 1988), aff'd in part, rev'd in part and remanded for dismissal, No. 88-5243 (D.C. Cir. Oct. 10, 1989); Planned Parenthood Fed'n of Am. v. Agency for Inter'l Dev., 670 F. Supp. 538 (S.D.N.Y. 1987), aff'd in part, rev'd in part and remanded, 838 F.2d 649 (2d Cir. 1988) (case still pending on remand).