The First Amendment and Physician Speech in Reproductive Decision Making Sonia M. Suter

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he regulation of medicine has long been recognized as within the state’s police powers.1 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,2 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. A few federal district and circuit courts have evaluated First Amendment challenges regarding some of these laws with radically different assessments as to the degree of First Amendment protection of informed consent speech in this context. This paper argues — based on existing law and ethical principles — especially the importance of protecting patient autonomy, that professional speech associated with informed consent is high value speech.3 Therefore, regulations of such speech require heightened, if not strict, scrutiny. In other words, although the state has a strong interest in regulating health care, because state regulations of physician speech implicate First Amendment interests for the physician and especially for the patient, they must be at least directly related to a substantial state interest if not narrowly tied to a compelling state interest. The paper concludes by describing the problematic aspects of some informed consent laws under the First Amendment.

I. What kind of Speech Is Physician Speech in the Context of Health Care? A First Amendment evaluation of speech regulations often starts by assessing the category of regulated speech and its value. Thus in this context, we might ask whether physician speech in health care is commercial speech, political speech, or something altogether different. And whatever we call such speech, what is the value of such speech and what standard of review applies to its regulation? The Supreme Court has had very little to say on these points. Because the Court has not categorized the speech uttered by health care providers (or indeed other professionals) in the course of providing professional services — what some Sonia M. Suter, M.S., J.D., is a Professor of Law at the George Washington University Law School.

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have called “professional speech”4 — the standard of review for its regulation remains “an unsettled question of law.”5 Many scholars and courts view professional speech as a form of commercial speech,6 which, particularly with respect to advertising, has received less protection under the First Amendment than noncommercial speech.7 Such speech has undoubtedly been treated in that manner because the Court’s limited exploration of First Amendment issues with respect to speech related to professions has generally dealt with regulations of advertising.8

vices. While his client’s trial was pending, the attorney for a man accused of theft had publicly protested alleged police misconduct in the investigation of his client. The Nevada Bar disciplined the attorney, claiming he violated a Nevada Supreme Court Rule prohibiting attorney speech that had a “substantial likelihood of prejudicing pending legal proceedings.”15 Applying a lower standard of review because attorneys have fiduciary obligations not to impede “the fair administration of justice” for their clients, the Court found that the state’s regulation of the attorney’s speech did not violate the First Amendment.16

In other words, although the state has a strong interest in regulating health care, because state regulations of physician speech implicate First Amendment interests for the physician and especially for the patient, they must be at least directly related to a substantial state interest if not narrowly tied to a compelling state interest. The paper concludes by describing the problematic aspects of some informed consent laws under the First Amendment. Commercial advertising cases, however, are not directly applicable to regulations of physician speech because commercial speech is fundamentally and qualitatively different from speech that occurs in the context of a trust-based relationship between physicians and patients. Commercial speech “does no more than propose a commercial transaction”9 or is “expression related solely to the economic interests of the speaker and audience.”10 It is often speech directed to the public, with whom the professional does not have a fiduciary relationship; indeed the point of the communication is often to try to establish such relationships. Whereas commercial speech seeks to maximize profits, communications in health care seek to fulfill fiduciary obligations to promote the patient’s best interests.11 While the line between commercial and noncommercial aspects of the relationship may not always be perfectly pure — as for example, when a physician discusses the risks and benefits of a procedure to propose a transaction of commercial value to the physician — the fiduciary obligations and trustbased nature of the relationship remains, making this much more than a pure commercial relationship. In other words, the speech does more than “propose a commercial transaction”12 and is not “related solely to the economic interests of the speaker and audience.”13 Only a few cases deal with the speech this paper addresses — speech integrally tied to the delivery of professional services. In Gentile v. State Bar of Nevada,14 for example, the Court addressed the regulation of speech indirectly related to the delivery of legal ser-

Gentile did not, however, deal directly with speech in the context of offering professional services. Only one Supreme Court case has addressed that issue — Planned Parenthood of Se. Pa. v. Casey,17 which dealt with the constitutionality of an informed consent provision for abortion. The statute at issue required physicians to inform the woman of the nature of the procedure, the health risks of the abortion and of child birth, and the “probable gestational age of the unborn child.” The physician or a qualified nonphysician must inform the woman of the availability of printed materials published by the State describing the fetus and providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion.18 The bulk of the plurality opinion explained why the provision was not an undue burden and did not violate the woman’s substantive due process rights under the Fourteenth Amendment. In a mere two sentences, the Court conceded that the mandate implicated the physician’s First Amendment interests, but concluded nonetheless that it was constitutional: To be sure, the physician’s First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430 U. S. 705 (1977), but only as part

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of the practice of medicine, subject to reasonable licensing and regulation by the State, cf. Whalen v. Roe, 429 U. S. 589, 603 (1977). We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.19 The Court’s cursory discussion cited, without analysis, just one First Amendment case: Wooley v. Maynard,20 a compelled speech case that applied strict scrutiny to and found invalid New Hampshire’s prosecution of a vehicle owner for covering up “Live Free or Die” on his New Hampshire license plates.21 The Casey plurality, however, failed to characterize the nature of the compelled speech, specify the strength of that First Amendment interest, or articulate the standard of review that applied. As a result, it left ambiguous how to evaluate regulations of professional speech in health care. Not surprisingly, there is substantial disagreement among the lower courts about how to evaluate abortion informed consent statutes. Whereas the district courts and one Circuit Court have generally applied a heightened intermediate or strict scrutiny standard of review, two Circuit Courts have used a rational basis test. The Federal District Court for the Western District of Texas and the Fifth Circuit Court of Appeals, for example, disagreed about the proper standard of review for a Texas statute that requires physicians to perform an ultrasound, display the images so the woman can view it, make the heartbeat audible to the woman (heart auscultation), and explain the results of the ultrasound and heart auscultation “in a manner understandable to the layperson.”22 Concluding that the statute amounted to content-based regulation of physicians’ speech, the district court in Texas Medical Providers Performing Abortion Services v. Lakey,23 preliminarily enjoined the statute. In so doing, it relied on Wooley and another compelled speech case, Riley v. National Federation of the Blind of North Carolina, Inc.,24 which found unconstitutional a North Carolina statute requiring professional fundraisers to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitation. It reasoned that the Casey plurality, in citing to Wooley, implicitly adopted Wooley’s strict scrutiny analysis. Therefore, the display and speech requirements could only stand if they were “narrowly tailored to serve a compelling government interest.”25 Because the State’s interest in potential life is not compelling before viability, the Lakey court concluded that “Casey did not…give the government carte blanche to force physicians to deliver, and force women to consider, whatever information the gov24

ernment deems appropriate.” 26 Instead, the court understood Casey as merely standing for the proposition that mandated disclosures of “truthful and not misleading” information “may be permissible.”27 It reasoned that the informed consent statute in Casey met the strict scrutiny test because the state has a “compelling interest in ensuring patients are accurately informed about the nature of medical procedures they are considering” and the state mandated the disclosure of only “reasonable” information. 28 In contrast, Texas’s informed consent statute could not survive strict scrutiny because it was “more onerous” and “less medically relevant.”29 The Fifth Circuit evaluated the Texas statute very differently, finding that Casey’s approach to the compelled speech was the “antithesis of strict scrutiny.”30 Focusing little on Wooley, the court understood Casey’s reference to Whalen v. Roe31 — which was not a First Amendment, but a constitutional privacy, case — as underscoring the state’s power to regulate medicine, including physicians’ speech.32 The Fifth Circuit concluded that informed consent laws do not trigger strict scrutiny because they “are part of the state’s reasonable regulation of medical practice and do not fall under the rubric of compelling ‘ideological’ speech.” Thus, as long as the compelled speech is “truthful, nonmisleading and relevant,” which the Fifth Circuit believed the Texas statute was, it was a constitutionally legitimate means to educate the woman about abortion and promote the state’s interests in “protecting the potential life within her.”33 The Fifth Circuit relied on the Eighth Circuit’s decision in Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds,34 which also rejected strict scrutiny with respect to a South Dakota abortion informed consent statute. The statute required, among other things, “a disclosure that the abortion ‘will terminate the life of a whole separate, unique, living human being’ with whom the woman ‘has an existing relationship’ entitled to legal protection.”35 Here again, the reasoning of the federal district court and Circuit Court of Appeals parted ways. The Rounds district court described the statute as requiring “doctors to enunciate the state’s viewpoint on an unsettled medical, philosophical, theological and scientific issue, that is whether a fetus is a human being.” Therefore, it was in violation of the First Amendment.36 The Eighth Circuit, however, found the statute permissible. It reasoned that the statute simply required disclosure of truthful and non-misleading biological information because the statute defined “‘a whole, separate, unique, living human being,’” as “‘an individual living member of the species of Homo sapiens… during [its] embryonic [or] fetal age[].’”37 Finding journal of law, medicine & ethics

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this information “at least as relevant to the patient’s of prevailing medical practice.56 First, the statutory decision to have an abortion as the gestational age of requirements do not resemble “traditional informed the fetus, which was deemed to be relevant in Casey,”38 consent” or even the informed consent mandate in the Eight Circuit let the statute stand.39 Casey.57 Whereas the mandate in Casey “deviate[s] Until recently, the district court decisions on these only modestly from traditional informed consent,” issues have been overturned by the appellate courts, the North Carolina requirements impose a “virtually in part, because of disagreement over the standard unprecedented burden” on professional speech “to the of review. With a recent ruling in the Fourth Circuit, detriment of the both speaker and listener.”58 First, as however, the Federal District Court for the Middle the Fourth Circuit noted, the typical informed consent District of North Carolina and the Fourth Circuit are “consists of a fully-clothed conversation between the aligned in their evaluation of a North Carolina statute patient and physician…driven by the ‘patient’s parthat requires physicians to perform ultrasounds prior ticular needs and circumstances,’” whereas under the to an abortion “‘so the pregnant woman may view speech and display provision the patient lies “halfthem,’” while simultaneously explaining “‘what the disnaked or disrobed on her back…with an ultrasound play is depicting’” and describing the images.40 Both probe either on her belly or inserted in her vagina.”59 the lower court, in Stuart v. Loomis,41 and the Fourth Second, as both courts observed, unlike the informed Circuit, in Stuart v. Camnitz,42 applied heightened scrutiny analysis43 and found that this speech and display provision At the heart of the debate over the violated the First Amendment.44 Both courts viewed the statute as constitutionality of informed consent laws is “quintessential” compelled speech, which the tension between the state’s authority to is ideological in shaping the message, as well as where and when it is delivered.45 regulate health care and the First Amendment While noting that such regulation of interests of doctor and patient in the speech typically warrants “the highest communications that shape informed consent. degree of First Amendment protection,” i.e., strict scrutiny analysis,46 the courts recognized “the state’s historic interest in the health and safety of its citizens,”47 and its “extenconsent mandate in Casey, the North Carolina statute sive” authority to protect the integrity of the medihas no therapeutic exception allowing a physician to cal profession and to set professional standards for avoid or control the timing of the mandated disclohealth care providers.48 Even so, the courts emphasure to protect “the health of particularly vulnerable or sized that professionals do not “simply abandon fragile patients.”60 As a result, the speech and display their First Amendment rights when they commence provision could potentially inflict psychological harm practicing a profession.”49 Rather, the “state’s regulaon women who do not want the information.61 Third, tion of speech must be consistent with the goals and the ultrasound must still be performed and the produties of the profession,50 and thus “the stringency of vider must still recite the findings even if the patient review…slides” on a continuum,51 which should take refuses to listen and wears “blinders and earphones,”62 into account the nature of the professional relationwhich burdens physicians while defeating the purship, the degree of intrusion into the relationship, the pose of the compelled speech.63 Finally, the compelled reasons for the intrusion, and the connection between speech regarding such a “volatile subject,” which must the compelled speech and the government’s interest.52 be delivered in the physician’s “own voice,” turns the It should also consider whether the provision is more physician into the state’s “mouthpiece,” which both like regulating “public dialogue” or regulating “proundermines trust between patient and physician and fessional conduct.”53 The courts ultimately concluded heightens the coercive effects of the message,64 which that “the confluence of these factors points toward is “antithetical” to the goals of informed consent.65 As borrowing a heighted intermediate scrutiny standard a result, both courts concluded that the statutes did used in certain commercial speech cases.”54 Because not survive heightened scrutiny.66 the North Carolina statute could not even survive heightened scrutiny, neither court evaluated whether II. Refining a First Amendment Theory in strict scrutiny would ever apply to such regulations.55 the Context of Informed Consent What particularly troubled the district court and At the heart of the debate over the constitutionality Fourth Circuit was that the compelled speech is outside of informed consent laws is the tension between the free speech and the regulation of reproductive health • spring 2015

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state’s authority to regulate health care and the First Amendment interests of doctor and patient in the communications that shape informed consent. Whatever theory of First Amendment law applies to professional medical speech must consider general informed consent requirements, which — outside the abortion context — are generally well accepted.67 Under one view, those informed consent laws are constitutionally permissible because a lower standard of review applies to such speech.68 Under another, the view I argue for below, such laws are constitutionally valid because most informed consent requirements fulfill “the state’s ‘compelling interest’ in promoting patients’ ability to exercise their constitutional rights to consent to or refuse treatment” and therefore would survive heightened or strict scrutiny.69 Some might argue that the state should be given great deference to regulate physician speech to ensure that the patient’s best interests are protected because the patient depends on the physician for medical care, advice, and disclosure of important information. Furthermore, the fact that the Gentile Court applied a lower standard of review for regulations of attorney speech given the professional’s fiduciary obligations to his client.70 As I argue below, however, there are countervailing reasons for less deference. First, the Court’s recent decision in Sorrell v. IMS Health, Inc.,71 albeit a commercial speech case, applies heightened scrutiny to regulations of commercial speech that were intended to promote public health, which offers an interesting twist on the Court’s traditional deference to the legislature in health care matters.72 The legislation at issue prohibited pharmaceutical manufacturers from accessing and using prescriber-identifying information for marketing because of concerns that aggressive sales efforts might harass doctors, affect treatment decisions and lead to higher costs of medical services.73 In spite of these public health concerns, the Court reasoned that a “‘consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue,’” especially “in the fields of medicine and public health where information can save lives.”74 Finding the statute to be “a content- and speaker-based restriction” that disfavors speech of a particular content — marketing — and specific speakers — manufacturers, the Court concluded it did not survive heightened scrutiny analysis.75 In emphasizing the importance of the free flow of speech, especially “in the fields of medicine and public health where information can save lives,”76 the Sorrell majority intimates that at least some speech related to health deserves strong First Amendment protection. There is good reason, however, to be skeptical about 26

the Sorrell Court’s conclusion that information about physician prescription practices used by pharmaceutical companies for marketing purposes is speech of such import, let alone speech that “can save lives.”77 Speech in the informed consent context, however, is of such great import. It is the sort of speech the restriction or undue regulation of which could truly affect the well-being of patients.78 A few courts have argued along those lines suggesting that precisely because of the special nature of the relationship between physicians and patients, communication in the context of this relationship “may be entitled to ‘the strongest protection our Constitution has to offer.’”79 As the Ninth Circuit noted in Conant v. Walters when finding that a federal policy revoking physicians’ registration for prescribing or recommending medical marijuana violated the First Amendment, “an integral component of the practice of medicine is the communication between a doctor and a patient.”80 Similarly, the Loomis court emphasized the state’s “lower interest in compelling” the speech of “accredited and licensed” professionals.81 There are two additional reasons that physician speech deserves heightened protection from government regulation. The first is the importance of physician communications during informed consent. Not only does this speech implicate the First Amendment interests of physicians and, as I discuss below, the First Amendment interests of patients, but this speech is essential to patients’ interests in “autonomous, informed decision making about their care.”82 Indeed, these interests may reach constitutional dimensions given the Court’s suggestion, if not full acceptance, of one’s constitutional rights to refuse medical treatment.83 In addition, certain kinds of state regulation of informed consent may negatively interfere with the important and sometimes delicate process of ensuring that patients are able to make informed decisions. Some might argue that public health officials deserve deference with respect to public health legislation as they presumably understand better than judges the balance of interests at stake between the public health goals and the impact on speech. This deference argument, however, is much weaker with respect to professional speech in the context of informed consent. In the latter context, there are two additional and highly relevant actors to whom we should defer as well — the doctor and patient. Physicians, for example, are far better poised than the legislature to determine the appropriate scope of disclosure with respect to any one patient because of physicians’ medical judgment and knowledge, and because the circumstances, needs, and desires journal of law, medicine & ethics

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of patients vary so greatly. In fact, the common law defers to some extent to the expertise and clinical judgment of physicians regarding the scope of their informed consent discussions with patients. This is fitting because the scope of information necessary for autonomous and informed decision making cannot be articulated precisely for all patients in all scenarios given how much patients differ in their taste for information, their ability to process and understand it, and the way in which they want the information presented.84 Thus, rather than describe exactly what should be disclosed and how it should be disclosed, the law leaves many details of disclosure to the discretion of the physician based on the full context of the patient’s circumstances.85 In addition, the law recognizes exceptions to disclosure requirements such as when the disclosure could cause harm to the patient — the therapeutic exception.86 In fact, part of what made North Carolina’s “speech-and-display” statute fail under the Loomis  and Camnitz courts’ First Amendment analysis was the lack of a provision allowing physicians not to express the mandated disclosure because of concerns about possible adverse effects on patients. While vague in its First Amendment analysis, the Casey plurality explicitly mentioned with approval the therapeutic exception in the informed consent statute it upheld, hinting that the law must allow for some professional discretion and medical judgment during the informed consent process.87 But there is a second, even more important, actor to whom we should also defer — the patient. The patient knows what information will be useful to her decision making and therefore the law should defer to her judgment about disclosure of information as well, a point that both ethics and law recognize. In fact, informed consent doctrine emerged to ensure that patients could overcome the paternalism of medicine when physicians alone decided on behalf of the patient what the patient needed to know.88 It evolved to ensure that patients are able to chart their own course89 so that they may fulfill their common law and possibly constitutional rights to make decisions concerning their health care.90 In fact, close to half of the states define the scope of disclosure based on what a reasonable patient would find material, rather than on a professional standard.91 In addition, while much of the focus in informed consent law and theory has been on the ability to obtain full medical information to make informed choices about whether to undergo medical treatment, there is also an autonomy interest in being able to decide, in the first place, whether to receive medical information that a physician might want to disclose.92 The law therefore allows, perhaps more

in theory than actual practice, the notion of patient waiver, that is, the right of the patient to decline to receive information.93 Given the importance of the state’s interests in promoting truly informed consent and autonomous decision making, the goal should not to be to arm the patient with medical information dictated by a legislature.94 Rather, the aspirational goal for informed consent is to base disclosure on both the physician’s expertise and knowledge of the patient’s condition and the patient’s preferences for information and how it is dispensed, all of which is clarified in an individualized dialogue between the two. Indeed, as the American Medical Association has noted, patients are entitled to choose their own physicians.95 In making such selections, patients may consider not only the physician’s expertise, but also whether they have shared beliefs or points of view. Forcing all physicians to say the same thing can inhibit the patient’s ability to make those choices. This ideal model of informed decision making suggests, therefore, that state efforts to promote informed decision making and to ensure that patients receive truthful and nonmisleading information from their physicians must allow sufficient discretion to the most important actors — the physician and patient.96 To provide such discretion, therefore, the court should impose some form of heightened scrutiny on state regulations of this process. One might argue, however, that treating legislative regulation of physician speech less deferentially than state regulation of medical care cannot be justified simply because of the important role of physician and patient. A physician also has unique expertise vis-avis the legislature about the most appropriate medical treatment and the patient may have special insight about the desirability of one treatment over another, and yet we accord the legislature a great deal of deference in regulating medical treatment.97 The difference, however, is that regulating speech, as opposed to medical conduct, affects information disclosure, which deserves heightened protection for a number of reasons. First, the physician has First Amendment interests as a speaker in deciding what information to share or not.98 But, as courts have recognized, the patient also has corollary First Amendment interests as a listener in receiving or deciding not to receive information,99 which, as noted above, impact the patient’s common law and possibly constitutional interests in making informed medical decisions.100 Thus, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,101 the Court invalidated a statute that prohibited licensed pharmacists from advertising the prices of prescription drugs in large part because of the significance of this infor-

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mation to “listener” consumers. The Court viewed the consumers’ interest in the information as at least as great as, if not greater than, the advertiser’s interests in expressing that information. The suppression of prescription drug prices particularly burdened the consumer, most especially “the poor, the sick, and particularly the aged,” who spend a “disproportionate amount of their income on prescription drugs” and for whom the information “could mean the alleviation of physical pain or the enjoyment of basic necessities.”102 While the advertiser’s interest in such expression was “purely economic,” the “consumer’s interest in the free flow of commercial information may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”103 Judge Kozinzki, in his concurring opinion in Conant v. Walters, similarly suggested that suppression of speech might sometimes harm the listener more than the speaker: “[T]he harm to patients from being denied the right to receive candid medical advice [about medical marijuana] is far greater than the harm to doctors from being unable to speak.”104 Being prohibited from prescribing or recommending medical marijuana would not stop physicians from practicing medicine or carrying on with their lives. But for patients it would remove a vital source of information about how to “alleviate excruciating pain, nausea, anorexia or similar symptoms,” with only “poor substitute” sources of information by word-of-mouth or on the Internet.105 While these cases recognize consumers’ or patients’ right to information in the face of suppressed, as opposed to compelled, speech, their First Amendment interests not to receive information are implicated when the government compels speech just as listener’s First Amendment interests are implicated when the state prohibits speech.106 Currently courts and commentators disagree as to whether First Amendment protections are greater for prohibited as opposed to compelled speech. Some courts find that regulations that compel commercial speech “‘tend[] to [be] less objectionable under the First Amendment’” than regulations that prohibit such speech.107 “Others believe the reverse.”108 The “Supreme Court has been deliberately noncommittal on the point”109 in spite of comments suggesting the distinction is not constitutionally significant.110 If, in the context of informed consent speech, prohibitions of physician communications should receive heightened scrutiny because of the patient’s strong interests in medical information,111 then similar scrutiny should apply to compelled speech given that the patient has equally strong interests in not receiving unwanted information. Indeed, the patient’s 28

interests both in receiving information and in not being compelled to listen to unwanted messages are equally strong when one considers one of the “three most commonly articulated goals of the Free Speech Clause,” namely the goal of encouraging “autonomy, self-realization, and self-determination.”112 As noted above, a patient’s right to hear material information about treatment decisions supports patient autonomy and self-determination. This information can be crucial to informed choices regarding health care and life planning decisions that can “affect one’s destiny.”113 But, equally so, a patient’s right not to listen to unwanted messages also supports patient autonomy and self-determination in deciding how to shape one’s medical course. Unwanted compelled listening “interferes with the decision-making process by not allowing adults to choose what information to consider in developing their thoughts and making up their minds” and it can “unduly influence the ultimate decision made.”114 While the state may think it knows what a rational, competent adult should consider in making important health care decisions, the paternalism of preventing the adult from making those determinations is entirely counter to the self-determination and autonomy goals of protecting speech.115 Thus, as I discuss in more detail below, any requirements of information disclosure should include waiver provisions that permit the patient to refuse to hear unwanted information.

III. Analyzing Some Informed Consent Statutes Let us turn now to state informed consent laws in the context of reproductive decision making. So far, the states’ speech regulations have compelled speech by mandating disclosure of categories of information or sometimes displays and explanations of images related to the pregnancy and fetus.116 Below, I evaluate legislation compelling discussions of contentious information, like fetal pain, and legislation that compels speech without creating explicit patient waivers or therapeutic exceptions. Ultimately, I conclude that none of these statutes can survive heightened or strict scrutiny. A. Fetal Pain Statutes and Other Disputed Medical Evidence One type of informed consent statute that has received little First Amendment attention by the courts, so far, requires physicians to tell women seeking abortions that the fetus feels pain at 20 weeks gestation.117 The First Amendment issues become more complex because of scientific disputes about whether such statements are scientifically true or accurate. A 2005 journal of law, medicine & ethics

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meta-analysis of research on fetal pain concluded that the sensory system necessary to feel pain develops only between 23 and 30 weeks’ gestation.118 It also concluded that “in order for the fetus to perceive pain, the fetus must also be able to interpret the sensory information. The limited data suggest, however, that this is unlikely to occur until twenty-nine weeks gestation or later.”119 As a first point of analysis, Casey makes explicit, and scholars and courts agree, that mandated disclosures must be truthful and not misleading.120 Requiring physicians to state as fact that the fetus can feel pain at 20 weeks or earlier would be inaccurate or misleading,121 given existing medical evidence. Mandating instead that physicians inform patients that the question of fetal pain is a disputed point would more easily pass the truthful, nonmisleading minimum criterion for compelled speech. In the face of the discrepancy in the data about whether the fetus can feel pain at 20 weeks, legislatures should not have discretion to take one side of the debate. Indeed, the very uncertainty of the information is reason to worry about a deferential standard of review. Patients depend on physicians for medical information in their medical decision making. Moreover, their First Amendment interest in this information is tied to their common law (and possible constitutional right) to make medical decisions.122 Thus, mandated disclosures of contentious facts should be subject to a higher standard of scrutiny to ensure that politics does not distort information about science and medicine in the informed consent process.123 But, the skeptic might argue, what about the Supreme Court’s deference to the legislature in the face of medically contentious information in a related, but different, context? In Gonzales v. Carhart,124 the Court considered whether the congressional ban of a form of late-term abortion was an undue burden on the woman’s right to terminate a pregnancy. In spite of considerable evidence that a significant percentage of the medical community found the banned procedure medically necessary for some women,125 the Court upheld the ban. Although the Supreme Court did not place “dispositive weight on Congress’s findings,” 126 it nevertheless showed considerable deference to the legislative findings in the face of a strong difference of medical opinion.127 Stating that just because some part of the medical community believes banning the procedure is medically risky, the Court thought it “too exacting a standard” to require the legislature to defer to that medical judgment. Instead, “considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.”128

One might initially conclude that Gonzales requires similarly deferential treatment of legislative conclusions regarding medically disputed information physicians are required to disclose. As noted earlier, however, regulating medical procedures or treatment is significantly different from regulating professional speech. In most cases, the Constitution would not “prevent legislation that altogether prohibits the use of ” a medical procedure…, even if the risks are in dispute because the state has broad authority to regulate medical care.129 Regulating speech is a different matter, however. 130 In Pickup v. Brown,131 for example, the Ninth Circuit stated that “doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering the treatment itself.”132 In applying only rational basis review to a statute that prohibited a certain kind of psychotherapy, the court emphasized that the “regulation of professional conduct,” as opposed to regulation of speech within the confines of the professional relationship, is “where the state’s power is great.”133 In contrast, in Conant v. Walters, the Ninth Circuit applied strict scrutiny to government regulation of physician speech in recommending or prescribing medical marijuana.134 The Pickup court interpreted Conant as demonstrating a clear “demarcation between conduct and speech.”135 Thus, laws that regulate speech by requiring medical professionals to make a statement as fact about a contested point should lead to “a more elevated [constitutional] scrutiny” than rational basis review.136 When there is real division of medical opinion, however — which does not seem to be the case with respect to whether fetal pain occurs before 20 weeks — some have argued that legislatures should “retain flexibility to decide which experts to credit.”137 That may be true when legislatures pass laws regarding conduct.138 But when the legislature seeks to compel information disclosure, the issue is quite different. Allowing the state to require health care professionals to state one side of the controversy as fact, when clearly no consensus exists, is troubling. I have argued before that in those instances, legislatures should “respect physician discretion in this area by not requiring physicians to disclose a statement about the science when there is more than one school of thought.”139 At the time I was agnostic about whether the legislature was constitutionally prohibited from such requirements. Given the First Amendment concerns, however, I would now argue that such mandates could not satisfy a heightened standard of review. While those laws might promote the state interest in preserving fetal life, they do so at the expense of accuracy and, there-

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fore, are directly at odds with the state’s substantial, if not compelling, interest in ensuring that patients can make informed choices. Consequently, these laws are not narrowly tailored to and do not directly advance such state interests and would fail under heightened or strict scrutiny. B. Compelled Disclosures without Exceptions As my analysis above suggests, truthful and nonmisleading disclosure requirements that do not have provisions for patient waivers are problematic. Informed consent law has pushed so hard to overcome the paternalism of physicians, who in the past were reluctant to share information about a patient’s diagnosis or medical options,140 that at times the legal and ethical doctrine seems almost paternalistic in demanding that patients receive a swath of information and make their own choices.141 If, however, the law takes seriously the notion that mentally competent patients are fit to determine their own medical course, they must also

Statutes like North Carolina’s speech and display provision have neither exception, at least explicitly.146 Both the Loomis court and Fourth Circuit were particularly troubled by the lack of the therapeutic exception.147 But even more troubling is the lack of a waiver provision. The waiver is especially vital given that it promotes patient autonomy. Furthermore, overly liberal use of the therapeutic exception can potentially undermine the informed consent goals of protecting the common law and possibly even constitutional interest in medical decision making. Supporters of the North Carolina statute might counter that it is not constitutionally suspect because it allows the woman to avoid the message with ear plugs and blinders. In fact, the North Carolina statute states that “[n]othing 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.”148 This is, however, a poor substitute for a true

As we have seen, assessing the nature and strength of the First Amendment interests that arise when the government regulates physician speech in the context of reproductive decisions is not straightforward. The limited Supreme Court First Amendment jurisprudence in this area has led to very different conclusions about the degree of protection such speech should be accorded. be seen as fit to determine for themselves the scope of information they want disclosed.142 A waiver provision is therefore essential in any informed consent law to provide for the right of the patient to decline to receive information.143 An informed consent statute that does not allow for such waiver is at odds with the goals of informed consent and, under this theory, cannot be said to be fulfilling the state interests in promoting autonomous decision making. Based on principles of beneficence and non-maleficence, ethics and the law also recognize a therapeutic exception in the rare instance when information would truly threaten the well-being of the patient.144 This exception, however, must be strictly limited to extreme cases. Otherwise it could undermine the goals of informed consent if, for example, physicians relied on it to avoid disclosing information that might make a reluctant patient fail to consent to a procedure the physician believes is medically indicated. If we take seriously the notion that a competent patient has the right to refuse even life-saving medical treatment, the patient should not be deprived of information simply to coerce her to have the unwanted procedure.145 30

waiver. The law requires a patient to lie on her back, “half naked or disrobed,” while a physician prods her body to produce an image she does not want to see and delivers a message she does not want to hear.149 Although the patient is not “technically” obliged to listen or watch, she can only avoid doing so by affirmatively taking unorthodox measures such as using blindfolds and ear plugs, while she is in such a vulnerable position. This scenario is profoundly different from the physician’s deciding not to disclose the information or perform the ultrasound to honor the patient’s request. Indeed, classifying this as a “waiver” option is farcical at best and demeaning at worst. Not only must the woman declare her unwillingness to hear the message, but she must affirmatively seek out physical measures to avoid the information. She must shut out all other messages or stimuli she may otherwise want to experience in a health care setting while the physician delivers a message and shows an image that she does not want delivered or shown. Forcing her to remain in the dark and silence to avoid unwanted messages for no sound medical reason burdens the woman withjournal of law, medicine & ethics

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out fulfilling any state interest either in promoting informed consent or in expressing the state interest’s in fetal life.150 Indeed, such statutes impede the woman’s ability to exercise her constitutional right not to hear by placing her in a position much like a “captive’ audience,” who “cannot avoid the objectionable speech.”151 The captive audience doctrine protects the listener’s right not to hear unwanted speech if the listener cannot avoid the message given the circumstances in which the message is delivered.152 Although the Court has not addressed this concept with respect to abortion informed consent mandates, it would seem to apply when a patient’s only option to escape unwanted speech is to retreat into darkness and silence or to leave, half-disrobed, from an intimate private space (i.e., the physician’s office).153 Thus, the lack of a waiver exception seems to fail under even rational basis because it simply does not advance any governmental objective.

Conclusion As we have seen, assessing the nature and strength of the First Amendment interests that arise when the government regulates physician speech in the context of reproductive decisions is not straightforward. The limited Supreme Court First Amendment jurisprudence in this area has led to very different conclusions about the degree of protection such speech should be accorded. The patient’s strong interests in autonomous informed decision making coupled with her and the physician’s First Amendment interests, however, argue for heightened protection of this speech. When one also considers the special insight that only the doctor and patient have about the patient’s informational needs in each decision making encounter, there is added reason to defer more to the physician and patient with respect to the scope of disclosure and less to the legislature. This is not to say that the state should not regulate informed consent. Indeed, it has a role in doing so; but only to the extent that it promotes, as opposed to hinders, informed decision making. Thus, the legislature should be wary about rigid, unyielding requirements that do not allow for the flexibility of professional judgment and patient choice and that do not take into account the highly individualized and collaborative process that informed decision making entails. Until the Supreme Court resolves the growing conflict among the federal courts about how to approach this issue, many questions remain about the First Amendment and state regulations of speech in the context of reproductive decision making. This article is, in part, a

call for the Court to clarify the many First Amendment questions it left unanswered in Casey. References

1. R. Post, “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. 2. 505 U.S. 833 (1992) (plurality opinion). 3. 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. 4. D. Halberstam, “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; M. Swartz, “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. 5.  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). 6.  Id. 7. J. A. Barron and C. T. Dienes, 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). 8. 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); Zauderer v. 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 off from effective access to the legal system” was deemed “undoubtedly even more valuable than many other forms of other advertising.”). 9.  Virginia State Bd., 425 U.S. at 762. 10.  Cent. Hudson Gas & Elec. Corp v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980). 11.  Id. 12.  Virginia State Bd., 425 U.S. at 762. 13.  Cent. Hudson Gas, 447 U.S. at 561. 14. 501 U.S. 1030 (1991). 15.  Id., at 1033. 16.  Id., at 1075. 17. 505 U.S. 833 (1992) (plurality opinion). 18.  Id., at 881. 19.  Id., at 884. 20. 430 U. S. 705 (1977). 21. The Wooley Court found such punishment invalid because it effectively required New Hampshire citizens to “use their pri-

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S Y MPO SIUM vate property as a ‘mobile billboard’ for the State’s ideological message – or suffer a penalty…” 430 U.S. at 1435. 22. 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). 23. 806 F. Supp. 2d 942 (W.D. Tex. 2011), vacated in part, 667 F. 3d 570 (5th Cir. 2012). 24. 487 U.S. 781 (1988). 25. 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. 26. Id., at 972. 27.  Id., at 966. 28. Id., at 973. 29. Id., at 972. 30. Texas Medical Providers Performing Abortion Services v. Lakey, 667 F. 3d 570, 575 (5th Cir. 2012). 31. 429 U.S. 589 (1977). 32. 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…’”). 33. Id., at 576. 34. 530 F.3d 724 (8th Cir. 2008) (en banc). 35. Id., at 726. 36. Planned Parenthood, 375 F. Supp. 2d at 887. 37. 530 F.3d at 735-36. 38. Id., at 736. 39. 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.”). 40. Id., at 587 (citing N.C. Gen. Stat § 90-21.85(a)(30)). 41. 992 F. Supp. 2d 585 (M.D. N.C. 2014). 42. 774 F.3d 238 (4th Cir, 2014). 43. Id., at 599-601; Camnitz, 774 F.3d at 248. 44. Loomis, 992 F. Supp. 2d at 607-09; Camnitz, 774 F.3d at 242. 45. Loomis, 992 F. Supp. 2d at 599; Camnitz, 774 F.3d at 246. 46. Loomis, 992 F. Supp. 2d at 599; Camnitz, 774 F.3d at 246. 47.  Loomis, 992 F. Supp. 2d at 599. 48. Camnitz, 774 F.3d at 246. 49. Id., at 247; Loomis, 992 F. Supp. 2d at 596. 50. Loomis, 992 F. Supp. 2d at 597. 51.  Camnitz, 774 F.3d at 248; Loomis, 992 F. Supp. 2d at 597-98. 52. Loomis, 992 F. Supp. 2d at 597-98. 53. 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. 54. Camnitz, 774 F.3d at 248 (citing Loomis, 992 F. Supp. 2d at 600). 55.  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. 56. Loomis, 992 F. Supp. 2d at 603-605; Camnitz, 774 F.3d at 251-54. 57.  Camnitz 774 F.3d at 251.

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58. Id., at 252. 59. 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. 60. 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; 992 F. Supp. 2d at 604-05. 61.  Camnitz 774 F.3d at 253; Loomis, F. Supp. 2d at 601-02. 62. 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. 63. Loomis, 992 F. Supp. 2d at 605-06; Camnitz, 774 F.3d at 252. 64. 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.”). 65. Camnitz, 774 F.3d at 251-53; Loomis, F. Supp. 2d at 605-05. 66. Camnitz, 774 F.3d at 251-52; Loomis, F. Supp. 2d at 605-05. 67. 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. S. M. Suter, “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. 68. Post, supra note 1, at 950. 69. Swartz, supra note 4, at 122. 70. 501 U.S. at 1075. 71. 131 S. Ct. 2653 (2011). 72. D. Orentlicher, “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”); B. R. Furrow et al., Health Law: Cases, Materials, and Problems, 7th ed. (St. Paul, MN: West Academic Publishing, 2013). 73. 131 S.Ct. at 2653, 2669-70 (2011). 74.  Id., at 2664 (quoting Bates v. State Bar of Ariz., 433 US. 350, 364 (1977). 75.  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. 76. 131 S. Ct. at 2664 (quoting Bates v. State Bar of Ariz., 433 US. 350, 364 (1977). 77. 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. 78. Whether physicians might have a First Amendment defense in common law informed consent claims is beyond the scope of

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Suter this piece, although as my conclusion intimates, such a defense is unlikely to succeed. 79. 309 F.3d at 637 (quoting Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995)). 80. 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”). 81.  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”). 82. Swartz, supra note 4, at 123. 83. Cruzan v. Dir., Mo. Dept. Of Health 497 U.S. 261, 261 (1990); Swartz, supra note 4, at 123-14. 84. Suter, “The Politics of Information,” supra note 67. 85. 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. 86. Canterbury v. Spence, 464 F. 2d 772, 789 (D.C. Cir. 1972); Nishi v. Hartwell, 473 P.2d 116 (Hawai’i 1970). 87. 505 U.S. at 883-84. See Camnitz, 774 F. 3d at 254; Loomis, 992 F. Supp. 2d at 603-04. 88. D. Rothman, Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (New York: Basic Books, 1991); J. Katz, 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. 89. 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). 90. See Swartz, supra note 4; S. Wear, Informed Consent: Patient Autonomy and Clinician Beneficence within Clinical Medicine, 2d ed. (Washington, D.C.: Georgetown University Press, 1998). 91. 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. 92. See C. E. Schneider, The Practice of Autonomy: Patients, Doctors, and Medical Decisions (New York: Oxford University Press, 1998). 93. A . Meisel, “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., J. W. Berg et al., Informed Consent: Legal Theory and Clinical Practice (New York: Oxford University Press, 2d ed. 2011). 94. See J. Staples King and B. W. Moulton, “Rethinking Informed Consent: The Case for Shared Medical Decision-Making,” American Journal of Law and Medicine 32, no. 4 (2006): 429501, at 430. 95. 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. 96. 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 selfgovernance, or promoting individual autonomy. C. M. Corbin, “The First Amendment Right Against Compelled Listening,” Boston University Law Review 89, no. 3 (2009): 939-1016, at 965. 97.  See Pickup v. Brown, 728 F. 3d 1042 (9th Cir. 2013); Post, supra note 1. 98. Casey, 505 U.S. at 884. 99. Barbara Smith, “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.”); P. Berg, “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. 100. See supra text accompanying note 90. 101. 425 U.S.750 (1976). 102. Id., at 763-64. 103. 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). 104. 309 F.3d at 643 (Kozinski, J., concurring). 105. Id. at 644 (Kozinski, J., concurring). 106. Corbin, supra note 96, at 977-996. 107. 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 H. C. Kim, “Physicians and the First Amendment: The Right Not to Speak,” Journal of Legal Medicine 31, no. 4 (2010): 423-432, at 425. 108. Post, supra note 1, at 980-81. 109. Id., at 980-81. 110. 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. 111. 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). 112. Corbin, supra note 96, at 966 (2009). 113. Id., at 976. 114. Id., at 982. 115. 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”). 116. 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. 117. Guttmacher Institute,“State Policies in Brief, Counseling and Waiting Periods for Abortion,” available at (last

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S Y MPO SIUM 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.” H. J. Tobin, “Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws,” Columbia Journal of Gender and Law 17, no. 1 (2008): 111-153. 118. S. Lee et al., “Fetal Pain: A Systematic Multidisciplinary Review of the Evidence,” JAMA 294, no. 8 (2005): 947-954. 119. S. M. Suter, “The Politics of Information,” supra note 67, at 26 n.142 (citing Lee et al., supra note 118). 120. See Casey, 505 U.S. at 838, 882; supra text accompanying note 96. 121. Tobin, supra note 101, at 143-52 (2008) (arguing that statemandated fetal pain information is misleading, if not inaccurate, and should be considered unconstitutional under Casey). 122. See supra text accompanying note 90. 123. 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. 124. 127 S. Ct. 1610 (2007). 125. Id., at 1644-46 (Ginsburg, J., dissenting). 126. Id., at 1637. 127. S. M. Suter, “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. 128. 127 S. Ct. at 1638. 129. 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. 130. 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)). 131. 728 F. 3d 1042 (9th Cir. 2013), amended by 740 F. 3d 1208 (2014). 132. 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. 133. Id., at 1229. 134. 309 F. 3d 629, 639 (9th Cir. 2002). 135. 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

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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. 136. Post, supra note 1, at 984-86. 137. Id., at 987 (suggesting that should be the case when “expert opinion is itself divided”). 138. See, e.g., Gonzales, 127 S. Ct. at 1610. 139. Suter, The Politics of Information, supra note 67, at 53. 140. Id., at 12-13. 141. Schneider, supra note 92, at 10. See also M. Strasser, “Mill and the Right to Remain Uninformed,” Journal of Medicine & Philosophy 11, no. 3 (1986): 265-78; D. E. Ost, “The ‘Right’ Not to Know,” Journal of Medicine & Philosophy 9, no. 3 (1984): 301-12, at 306-07. 142. 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. 143. There are very few cases that deal with this affirmative defense. See note 93. 144. Furrow, supra note 72. 145. See M. Somerville, “Therapeutic Privilege: Variation on the Theme of Informed Consent,” The Journal of Law, Medicine, and Ethics 12, no. 4 (1984): 4-12. 146. 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). 147. See supra text accompanying notes 60-61. 148. N.C. Gen. Stat. § 90-21.85(b). 149. Camnitz,774 F.3d at 254-55. 150. Id. at 253; Loomis, 992 F. Supp. 2d at 605-06. 151. 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. 152. 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. 153. 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.”).

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The first amendment and physician speech in reproductive decision making.

Courts are divided as to whether abortion informed consent mandates violate the First Amendment. This article argues that given the doctor's and patie...
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