The First Amendment and Physician Speech in Reproductive Decision Making

Post R. , “Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, University of Illinois Law Review 74, no. 3 (2007): 939–90, at 950.

505 U.S. 833 (1992) (plurality opinion).

This paper focuses on medical speech in the context of informed consent laws since many of the justifications for such speech regulations have focused on the importance of insuring that patients provide informed consent. In addition, this is the area where there has been significant legal controversy. There is good reason to think that the arguments here should extend beyond just informed consent, but that discussion is beyond the scope of this piece.

Halberstam D. , “Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions,, University of Pennsylvania Law Review 147, no. 4 (1999): 771–851, at 843;.

Post, supra note 1, at 947;.

Swartz M. , “Physician-Patient Communication and the First Amendment After Sorrell,” Michigan State University Journal of Medicine and Law 17, no. 2 (2012): 101–140, at 110. Stuart v. Loomis, 992 F. Supp. 2d 585, 596 (M.D. N.C. 2014) (“[J]ust what ‘professional speech’ means and whether it receives a different degree of protection under the First Amendment is not particularly clear”) (citing Stuart, 834 F. Supp. 2d at 431 (noting that “the phrase has been used by the Supreme Court justices only in passing” and collecting cases)). “The Supreme Court and lower courts have rarely addressed the First Amendment contours of a professional's freedom to speak to a client.” Halberstam, supra note 4, at 834.

Wollschlaeger v. Farmer, 880 F. Supp. 1251, 1263 (S.D. Fla. June 29, 2012), reversed in part, vacated in part, Wollschlaeger v. Governor of Florida, 760 F.3d 1195 (11th Cir. 2014).

Id.

Barron J. A. Dienes C. T. , First Amendment Law (St. Paul, MN: West Group, 2008): At 21. The standard of review for such speech, however, has been evolving over the years, id., culminating with the Supreme Court's application of heightened review for such speech in Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011).

Swartz , supra note 4, at 108. See, e.g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S.750 (1976) (striking down a law that prohibited advertising because it did not impede pharmacists' professionalism and it offered important information about the price of prescription drugs to consumers) v. Zauderer Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 646–47 (1985) (invalidating a ban on nondeceptive legal advertising, which to the extent that it “tended to acquaint persons with their legal rights who might otherwise be shut of from effective access to the legal system” was deemed “undoubtedly even more valuable than many other forms of other advertising.”).

Virginia State Bd., 425 U.S. at 762.

Cent. Hudson Gas & Elec. Corp v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 561 (1980).

Id.

Virginia State Bd., 425 U.S. at 762.

Cent. Hudson Gas, 447 U.S. at 561.

501 U.S. 1030 (1991).

Id, at 1033.

Id, at 1075.

505 U.S. 833 (1992) (plurality opinion).

Id, at 881.

Id, at 884.

430 U. S. 705 (1977).

The Wooley Court found such punishment invalid because it effectively required New Hampshire citizens to “use their private property as a ‘mobile billboard’ for the State's ideological message – or suffer a penalty…” 430 U.S. at 1435.

Tex. Health & Safety Code Ann. § 171.012. A 2011 Amendment requires the woman to sign a form indicating that she received the required material and that she understands her right to view the ultrasound images and to hear the fetal heartbeat, but that she still chooses to have an abortion. Id. at § 171.012(a)(4).

806 F. Supp. 2d 942 (W.D. Tex. 2011), vacated in part, 667 F. 3d 570 (5th Cir. 2012).

487 U.S. 781 ( (1988).

806 F. Supp. 2d at 969. The Lakey court reasoned that the undue burden test of Casey was not relevant to the First Amendment analysis because it had been developed to analyze the woman's Fourteenth Amendment claims and thus it did not replace Wooley's strict scrutiny analysis.

Id, at 972.

Id, at 966.

Id, at 973.

Id, at 972.

Texas Medical Providers Performing Abortion Services v. Lakey, 667 F. 3d 570, 575 (5th Cir. 2012).

429 U.S. 589 ( (1977).

667 F. 3d at 575 (noting “that physicians' rights not to speak are, when ‘part of the practice of medicine, subject to reasonable licensing and regulation by the State…”’).

Id, at 576.

530 F.3d 724 (8th Cir. 2008) (en banc).

Id, at 726.

Planned Parenthood, 375 F. Supp. 2d at 887.

530 F.3d at 735–36.

Id, at 736.

Id, at 734–35 (“W]hile the State cannot compel an individual simply to speak the State's ideological message, it can use its regulatory authority to require a physician to provide truthful, nonmisleading information relevant to a patient's decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion.”).

Id, at 587 (citing N.C. Gen. Stat § 90–21.85(a)(30)).

992 F. Supp. 2d 585 (M.D. N.C. 2014).

774 F.3d 238 (4th Cir, 2014).

Id, at 599–601;.

Camnitz, 774 F.3d at 248.

Loomis, 992 F. Supp. 2d at 607–09;.

Camnitz, 774 F.3d at 242.

Loomis, 992 F. Supp. 2d at 599;.

Camnitz, 774 F.3d at 246.

Loomis, 992 F. Supp. 2d at 599;.

Camnitz, 774 F.3d at 246.

Loomis, 992 F. Supp. 2d at 599.

Camnitz, 774 F.3d at 246.

Id, at 247;.

Loomis, 992 F. Supp. 2d at 596.

Loomis, 992 F. Supp. 2d at 597.

Camnitz, 774 F.3d at 248;.

Loomis, 992 F. Supp. 2d at 597–98.

Loomis, 992 F. Supp. 2d at 597–98.

Camnitz, 774 F.3d at 248 (quoting Pickup v. Brown, 740 F.3d 1208, 1227, 1229 (9th Cir. 2014))

Loomis, 992 F. Supp. 2d at 600.

Camnitz, 774 F.3d at 248 (citing Loomis, 992 F. Supp. 2d at 600).

Id. (citing Sorrell, 131 S. Ct. at 2667)

Loomis, 992 F. Supp. 2d at 600. The Fourth Circuit acknowledged its deviation from the Fifth and Eighth Circuit's analysis of the standard of review, concluding that these courts “read too much into Casey and Gonzales” in concluding that they establish that rational basis review should be accorded statutes that compel physician speech in the abortion context

Camnitz, 774 F.3d. at 249. As the Fourth Circuit noted, Casey “hardly announces a guiding standard of scrutiny” and Gonzales didn't even address a First Amendment claim. Moreover, as the court pointed out, “the fact that a regulation does not impose an undue burden on a woman under the due process clause does not answer the question of whether it imposes an impermissible burden on the physician under the First Amendment.” Id.

Loomis, 992 F. Supp. 2d at 603–605;.

Camnitz, 774 F.3d at 251–54.

Camnitz 774 F.3d at 251.

Id, at 252.

Id, at 254–55

The Fourth Circuit further observed that “[i]nformed consent has not generally been thought to require a patient to view images from his or her own body.” Id. at 255. It also pointed out that unlike traditional informed consent, the provision at issue is not “intended to convey…the risks and benefits of the medical procedure…., but rather the full weight of the state's moral condemnation.” Id.

Id at 254;.

Loomis, 992 F. Supp. 2d at 603–4

Both courts therefore found the statute inconsistent with ethical norms that allow for a therapeutic exception. 774 F.3d at 254;.

F. Supp. 2d at 604–05.

Camnitz 774 F.3d at 253;.

Loomis, F. Supp. 2d at 601–02.

Loomis, 992 F. Supp. 2d at 590 (“Nothing in this section is construed to prevent a pregnant woman from averting her eyes from the displayed images or from refusing to hear the simultaneous explanation and medication description.”) (citing N.C. Gen. Stat. § 90–21.85(b)); Camnitz, 774 F.3d at 253.

Loomis, 992 F. Supp. 2d at 605–06;.

Camnitz, 774 F.3d at 252.

Camnitz, 774 F.3d at 253 (quoting Loomis, 992 F. Supp. 2d at 609) (The “speech-and-display provision is…like an unyielding straightjacket” that uses “health care providers as [the State's] mouthpiece.”).

Camnitz, 774 F.3d at 251–53;.

Loomis, F. Supp. 2d at 605–05.

Camnitz, 774 F.3d at 251–52;.

Loomis, F. Supp. 2d at 605–05.

Post, supra note 1;.

Swartz , supra note 4. The state regulates informed consent through common law requirements as well as some general informed consent statutes as well. Virtually no First Amendment challenges have been brought against typical informed consent statutes, although they have been criticized on other grounds

Suter S. M. , “The Politics of Information: Informed Consent in Abortion and End-of-Life Decision Making,” American Journal of Law & Medicine 39, no. 1 (2013): 7–61.

Post, supra note 1, at 950.

Swartz, supra note 4, at 122.

501 U.S. at 1075.

131 S. Ct. 2653 ( (2011).

Orentlicher D. , “The Commercial Speech Doctrine in Health Regulation: The Clash Between the Public Interest in a Robust First Amendment and the Public Interest in Effective Protection from Harm,” American Journal of Law & Medicine 37, no. nos. 2–3 (2011): 299–314, at 300–01 (noting that the Supreme Court has “treated health care matters differently than issues arising in other industries and settings”);.

Furrow B. R. , Health Law: Cases, Materials, and Problems, 7th ed. (St. Paul, MN: West Academic Publishing, 2013).

131 S.Ct. at 2653, 2669–70 (2011).

Id, at 2664 (quoting Bates v. State Bar of Ariz., 433 US. 350, 364 (1977).

Id, at 2663

Noting that the pharmaceutical drug industry is heavily regulated, and concerned about the way this heightened standard of review “would transfer from legislatures to judges the primary power to weigh ends and to choose means, threatening to distort and undermine legislative objectives,” id. at 2675 (Breyer, J., dissenting), the dissenters argued for a rational basis approach, id. at 2678–79

David Orentichler has similarly argued that a more deferential standard of review should apply to such public health regulations because “public health officials are in a better position than judges to decide whether a data mining statute infringes too much on freedom of speech” and to assess the effectiveness of alternative regulations that might infringe less on speech. Orentichler, supra note 72, at 313–14.

131 S. Ct. at 2664 (quoting Bates v. State Bar of Ariz., 433 US. 350, 364 (1977).

One senses that the majority and dissenters would have very different views about how much deference to accord legislatures in the context of abortion informed consent statutes.

Whether physicians might have a First Amendment defense in common law informed consent claims is beyond the scope of this piece, although as my conclusion intimates, such a defense is unlikely to succeed.

309 F.3d at 637 (quoting Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995)).

Id. at 629, 636 (2002) (noting that the law recognizes a doctor-patient testimonial privilege, which “reflects ‘the imperative need for confidence and trust’ inherent in the doctor patient relationship”).

Loomis, 992 F. Supp. 2d at 596 (pointing out that the Fourth Circuit had “intimated that where professionals are accredited and licensed, the state has a lower interest in compelling their speech”).

Swartz , supra note 4, at 123.

Cruzan v. Dir., Mo. Dept. Of Health 497 U.S. 261, 261 (1990);.

Swartz , supra note 4, at 123–14.

Suter , “The Politics of Information,” supra note 67.

The scope of disclosure is circumscribed only by what would be material to a reasonable patient in that patient's circumstances or what a reasonable physician would disclose, depending on the jurisdiction. Id. at 14.

Canterbury v. Spence, 464 F. 2d 772, 789 (D.C. Cir. 1972)

Nishi v. Hartwell, 473 P.2d 116 (Hawai'i 1970).

505 U.S. at 883–84

See Camnitz, 774 F. 3d at 254;.

Loomis, 992 F. Supp. 2d at 603–04.

Rothman D. , Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (New York: Basic Books, 1991);.

Katz J. , The Silent World of Doctor and Patient (Baltimore: Johns Hopkins University Press, 1984) (noting how “alien to medical thinking and practice” informed consent is)

Suter , “The Politics of Information,” supra note 67, at 12–13.

See, e.g., Canterbury v. Spence, 464 F. 2d 772, 781 (D.C. Cir. 1972)

Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914).

See Swartz , supra note 4;.

Wear S. , Informed Consent: Patient Autonomy and Clinician Beneficence within Clinical Medicine, 2d ed. (Washington, D.C.: Georgetown University Press, 1998).

Suter , “The Politics of Information,” supra note 67, at 14. There are criticisms with this approach, however, because it is based not on what the individual patient would find material, but instead on the mythical reasonable patient. This objective test, however, reflects courts' attempts to balance the autonomy interests of the patient with the other obligations of the physician, including ensuring not only that the patient is well informed but also well cared for. Id.

See Schneider C. E. , The Practice of Autonomy: Patients, Doctors, and Medical Decisions (New York: Oxford University Press, 1998).

Meisel A. , “The ‘Exceptions’ to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Decision Making,” Wisconsin Law Review 1979, no. 2 (1979): 413–88, at 453–60.

There are very few cases that deal with this affirmative defense. Furrow, supra note 72. Ethically, the waiver concept raises complicated problems about how to ensure that a patient is informed in deciding not to receive information without forcing unwanted and potentially harmful information on the patient. There is a wealth of legal and ethical literature that addresses these various issues surrounding informed consent. See, e.g., Berg J. W. , Informed Consent: Legal Theory and Clinical Practice (New York: Oxford University Press, 2d ed. 2011).

See Staples King J. Moulton B. W. , “Rethinking Informed Consent: The Case for Shared Medical Decision-Making,” American Journal of Law and Medicine 32, no. 4 (2006): 429–501, at 430.

AMA Judicial Council Opinion 8.12 (1982), available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion812.page.

The Court has consistently found that regulations compelling speech that is untruthful or misleading violate the First Amendment, see, e.g., Casey, 505 U.S. at 882. This approach is consistent with the view that such speech must, of necessity, be among the lowest valued speech, as it serves none of the underlying values supporting the First Amendment, such as promoting a marketplace of ideas, facilitating democratic self-governance, or promoting individual autonomy

Corbin C. M. , “The First Amendment Right Against Compelled Listening,” Boston University Law Review 89, no. 3 (2009): 939–1016, at 965.

See Pickup v. Brown, 728 F. 3d 1042 (9th Cir. 2013); Post, supra note 1.

Casey, 505 U.S. at 884.

Smith Barbara , “The Right to Receive Information Online in Public Libraries,” Communication Law & Policy 18, no. 1 (2013):63–89

Smolla & Nimmer on Freedom of Speech § 2:73 (St. Paul, MN: Thompson Reuters, 2013) (“While we usually think of the First Amendment as empowering speakers to speak, it might well be understood as embracing a concomitant right of listeners to listen, viewers to view, or readers to read.”);.

Berg P. , “Toward a First Amendment Theory of Doctor-Patient Discourse and the Right to Receive Unbiased Medical Advice,” Boston University Law Review 74, no. 2 (1994): 201–230, at 224. See also Camnitz, 774 F.3d at 250.

See supra text accompanying note 90.

425 U.S.750 (1976).

Id, at 763–64.

Id, at 762–63. The Sorrell majority relied on this reasoning – even quoting much of this language from Virginia Board. 131 S. Ct. at 2664 (quoting Bates v. State Bar of Ariz., 433 US. 350, 364 (1977).

309 F.3d at 643 ( Kozinski J. , concurring).

Id. at 644 ( Kozinski J. , concurring).

Corbin , supra note 96, at 977–996.

Post, supra note 1, at 980 (quoting Walker v. Bd. of Prof'l Responsibility of the Supreme Court of Tenn., 38 S.W.3d 540, 545 (Tenn. 2001))

See also Kim H. C. , “Physicians and the First Amendment: The Right Not to Speak,” Journal of Legal Medicine 31, no. 4 (2010): 423–432, at 425.

Post, supra note 1, at 980–81.

Id, at 980–81.

Riley, 487 U.S. at 796 (“There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance.”). In a future article, I plan to explore the First Amendment issues associated with legislation that might prohibit disclosure of certain information in the reproductive context. In that piece, I will also explore at much greater length than is possible in this piece whether and to what extent there is any distinction between compelled and prohibited speech.

Post, supra note 1, at 979 (“First Amendment constraints on the regulation of professional physician speech in the context of communications involving informed consent…should focus on the right of the patient to receive information, rather than the right of the doctor to speak as he wishes.”)

Zauderer, 471 U.S. at 651 (noting that the First Amendment value of speech is assessed by its value to the consumers) (citing Virginia State Bd., 425 U.S. at 748).

Corbin , supra note 96, at 966 (2009).

Id, at 976.

Id, at 982.

Id, at 986–89. The full exploration of when such compelled listening is unconstitutional is more nuanced than I can explore in this piece

See Corbin , supra note 96, at 980, 986 (noting that this notion builds on the captive audience doctrine and advocating a more contextual analysis in order to determine whether the right against compelled listening is implicated”;).

As noted, I plan to explore the First Amendment issues associated with legislation that might prohibit disclosure of certain information to discourage abortions based on traits like race, gender, or even inherited disorders. See supra note 110.

Guttmacher Institute,“State Policies in Brief, Counseling and Waiting Periods for Abortion,” available at <http://www.guttmacher.org/statecenter/spibs/spib_MWPA.pdf> (last visited February 4, 2015) (listing Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Minnesota, Missouri, Oklahoma, South Dakota, Texas, and Utah). Alaska, South Dakota and Texas provide this information in written counseling materials although the disclosure is not mandated by state law. Id. These and other mandates to disclose sometimes controversial medical information are often entitled “Woman's Right to Know Acts.”

Tobin H. J. , “Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws,” Columbia Journal of Gender and Law 17, no. 1 (2008): 111–153.

Lee S. , “Fetal Pain: A Systematic Multidisciplinary Review of the Evidence,” JAMA 294, no. 8 (2005): 947–954.

Suter S. M. , “The Politics of Information,” supra note 67, at 26 n.142 (citing Lee et al., supra note 118).

See Casey, 505 U.S. at 838, 882;.

supra text accompanying note 96.

Tobin , supra note 101, at 143–52 (2008) (arguing that state-mandated fetal pain information is misleading, if not inaccurate, and should be considered unconstitutional under Casey).

See supra text accompanying note 90.

Post, supra note 1, at 986 (suggesting that “[a] deferential standard of review would grant the political system unchecked discretion to prevent the (professional-patient) relationship from serving as a channel for communication of professional knowledge”)

Post's reasons for why access to this knowledge is important, however, are different from mine. See supra text accompanying notes 79–105.

127 S. Ct. 1610 ( (2007).

Id, at 1644–46 ( Ginsburg J. , dissenting).

Id, at 1637.

Suter S. M. , “The “Repugnance” Lens of Gonzales v. Carhart and Other Theories of Reproductive Rights: Evaluating Advanced Reproductive Technologies,” George Washington University Law Review 76, no. 6 (2007): 1514–1598, at 1572–73.

127 S. Ct. at 1638.

Post, supra note 1, at 984–86

Of course, the abortion context is unique in that the state may ban a medical procedure post viability. See Casey, 505 U.S. at 846. Even there, however, there are exceptions “for pregnancies which endanger the woman's life or health.” Id.

Corbin , supra note 96, at 984 “‘[W]e think it quite clear that banning speech may sometimes prove far more intrusive than banning conduct.”’) (quoting 44 Liquormart v. Rhode Island, 517 U.S. 484, 511 (1996) (Stevens, J., plurality opinion).

728 F. 3d 1042 (9th Cir. 2013), amended by 740 F. 3d 1208 (2014).

740 F.3d at 1227. Of course, in the context of abortion, the state cannot prohibit abortions, at least before viability. To the extent that the state can regulate some aspects of pre-term abortion and even prohibit abortions post-viability, however, the situation is similar. The key point here is that the states have generally considerably more freedom to regulate and even prohibit medical procedures than to regulate professional speech.

Id, at 1229.

309 F. 3d 629, 639 (9th Cir. 2002).

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 1229

At the “midpoint of the continuum, within the confines of a professional relationship, First Amendment protection of a professional's speech is somewhat diminished.” Id., at 1228.

Post, supra note 1, at 984–86.

Id, at 987 (suggesting that should be the case when “expert opinion is itself divided”).

See, e.g., Gonzales, 127 S. Ct. at 1610.

Suter, The Politics of Information, supra note 67, at 53.

Id, at 12–13.

Schneider , supra note 92, at 10. See also

Strasser M. , “Mill and the Right to Remain Uninformed,” Journal of Medicine & Philosophy 11, no. 3 (1986): 265–78;.

Ost D. E. , “The ‘Right’ Not to Know,” Journal of Medicine & Philosophy 9, no. 3 (1984): 301–12, at 306–07.

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.

There are very few cases that deal with this affirmative defense. See note 93.

Furrow , supra note 72.

See Somerville M. , “Therapeutic Privilege: Variation on the Theme of Informed Consent,” The Journal of Law, Medicine, and Ethics 12, no. 4 (1984): 4–12.

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).

See supra text accompanying notes 60–61.

N.C. Gen. Stat. § 90–21.85(b).

Camnitz,774 F.3d at 254–55.

Id at 253;.

Loomis, 992 F. Supp. 2d at 605–06.

Consol. Edison Co. of N.Y. v. Pub. Serv. Comm'n, 447 U.S. 530, 541–42;.

Corbin , supra note 96, at 943;.

see also Camnitz, 774 F.3d at 250.

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.

Cf. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 781 (1994) (Stevens, J., concurring in part and dissenting in part) (arguing that the First Amendment does not create “an unqualified constitutional right to follow and harass an unwilling listener, especially one on her way to receive medical services.”).