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Abortion and Compelled Physician Speech

Published online by Cambridge University Press:  01 January 2021

David Orentlicher
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Extract

As states increasingly impose informed consent mandates on abortion providers, the required disclosures bring two well-established legal doctrines into conflict — the First Amendment’s freedom of speech and the physician’s duty to obtain informed consent.

On one hand, the First Amendment provides for a broad freedom of speech, under which government may neither prevent people from voicing their own views, nor compel individuals to voice the government’s views. As the Supreme Court observed in Wooley v. Maynard, the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” When legislatures tell physicians what they must disclose to their patients, the physicians lose their right not to speak.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 43 , Issue 1 , Spring 2015 , pp. 9 - 21
Copyright
Copyright © American Society of Law, Medicine and Ethics 2015

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References

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Requiring that women undergo an ultrasound raises different questions than requiring physicians to offer women the opportunity to view their ultrasound images. That said, ultrasounds are commonly performed before an abortion for medical reasons. According to a national survey of abortion providers in the United States, more than 90 percent of the facilities perform ultrasounds as a routine matter for first-trimester abortions, and the other facilities often will perform ultrasounds for medical reasons. O'Connell, K.et al, “First-Trimester Surgical Abortion Practices: A Survey of National Abortion Federation Members,” Contraception 79, no5 (2009): 385–392, at 388.CrossRefGoogle Scholar
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