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The First Amendment and Physician Speech in Reproductive Decision Making

Published online by Cambridge University Press:  01 January 2021

Sonia M. Suter
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Extract

The regulation of medicine has long been recognized as within the state’s police powers. Yet when the state regulates physicians’ professional speech, it potentially raises First Amendment concerns. Nowhere is this truer than in the abortion context, where state legislatures have attempted to influence women’s reproductive decisions with informed consent requirements. Although the Supreme Court, in Planned Parenthood of Se. Pa. v. Casey, found a mandated disclosure provision constitutional some 20 years ago, it offered little to clarify the scope and reach of the First Amendment issues that arise with abortion informed consent laws.

Since Casey was decided, legislatures have enacted a range of informed consent laws that impose even more stringent abortion informed consent regulations than the provisions at issue in Casey.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 43 , Issue 1 , Spring 2015 , pp. 22 - 34
Copyright
Copyright © American Society of Law, Medicine and Ethics 2015

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References

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740 F. 3d at 1226. The Ninth Circuit's view of the value of speech in the context of the professional relationship evolved between the first and amended opinions of Pickup. In the first opinion, it stated that “content-or viewpoint-based regulation of communications about treatment must be closely scrutinized.” Pickup, 728 F. 3d at 1056. In the amended opinion, it saw professional speech as lying on a continuum, where at one end, “a professional is engaged in a public dialogue” and “First Amendment protection is at its greatest,” 740 F.3d at 1227, and at “the other end of the continuum,” where the state regulates “professional conduct” and “the state's power is great,” id., at 1229Google Scholar
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Of course, there are limits to this. Courts do not shape the scope of disclosure around the individual patient's subjective desires under the theory that that would be prohibitively burdensome to a physician. Thus the physician is not required to, although of course may choose to, disclose more than that a reasonable physician would disclose or what a reasonable patient would find material. See supra note 85.Google Scholar
There are very few cases that deal with this affirmative defense. See note 93.Google Scholar
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The Texas ultrasound statute is only marginally better in providing a waiver option in very limited circumstances: If the patient declares that her pregnancy is the result of sexual assault, incest, or another crime; if she is a minor obtaining an abortion under the judicial bypass procedure; or the fetus has “an irreversible medical condition or abnormality.” Tex Health & Safety Code Ann. § 171.012(a)(5).Google Scholar
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The Court has not fully fleshed out exactly what circumstances make someone a captive audience. It has, however, distinguished those who are not because they are in open spaces,… meeting hall[s], park[s], street corner[s], or other public thoroughfare[s]” from those in more restricted circumstances like passengers riding in streetcars, Lehman v. City of Shaker Heights, 418 U.S. 298, 303 (1974), residents in their homes, Frisby v. Shultz, 487 U.S. 474, 484–85 (1988), “employees during working hours,” NLRB v. United Steelworkers of America, CIO, 357 U.S. 357, 368 (1958), or those in other circumstances where one “cannot avoid the objectionable speech,” Frisby, 487 U.S. at 487.Google Scholar
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