Challenging Abortion Informed Consent Regulations through the First Amendment: The Case for Protecting Physicians’ Speech

A woman finds out she is pregnant. She makes the choice to terminate her pregnancy. Maybe she decides this instantly. Perhaps she reaches her decision through a series of conversations with her partner, her family, or her friends. Regardless, there is only one person she will need to have a conversation with before she can have an abortion: her physician.

Right? Actually, wrong. In Planned Parenthood of Southeastern Pennsylvania v. Casey,11

the Supreme Court allowed states to add themselves to the mix. While affirming a woman’s right to have an abortion, the Casey Court also acknowledged states’ rights to regulate and express disapproval of the practice. In so doing, the Court opened the door for states to join the private conversation between a woman and her physician. In the years since Casey, states have increasingly used this door to regulate what a physician must do or say to a woman before she can give her “informed consent” to an abortion.

Because of this, obtaining an abortion can be a dramatically different experience depending on where you live.22

In some states, abortion is treated like any other medical procedure, can be completed in one day, and only requires the signing of a standard medical consent form.33 In contrast, many others states require all women seeking abortions to first receive an ultrasound,44 a medically unnecessary procedure for first-trimester abortions (which 89% of abortions are).55 Some states further regulate how physicians must narrate these ultrasounds and how women must listen.66 Many states require mandatory pre-abortion counseling and a waiting period between receiving counseling and obtaining the procedure.77 Women may also hear that personhood begins at conception,88 and medically inaccurate claims that medical abortion can be reversed99 and increases risk of breast cancer,1010 suicide,1111 and future infertility.1212

Claiming to balance the rights of women with those of the state, the Casey court created a new test, dubbed the undue burden standard. Under this test, regulations on abortion are permissible provided they do not impose an undue burden on a woman’s choice to have an abortion before the fetus reaches viability (i.e. is potentially able to live outside the woman’s body).1313

Most subsequent challenges to state abortion regulations have thus claimed that the regulations at issue impose an undue burden on a woman’s right to choose.1414

However, the undue burden standard poses a low bar that most regulations clear. As an alternative, some challengers have brought their claims as violations of physicians’ free speech rights under the First Amendment. Courts review First Amendment challenges under standards ranging from strict scrutiny to rational basis review, “depending on the type of regulation and the justifications and purposes underlying it.”1515

In the context of informed consent, First Amendment claims have been subject to an intermediate level of scrutiny that can invalidate regulations which would otherwise likely survive an undue burden challenge.

The challengers in Casey brought precisely such a claim, arguing that the informed consent provisions at issue infringed physicians’ First Amendment rights. The Court dismissed this claim in an ambiguous three-sentence paragraph that left open the question of whether such challenges can be sustained in the abortion context.1616

Whether the undue burden test is the exclusive way through which to assess the constitutionality of informed consent measures remains a live issue. A circuit split has developed, with the Eighth, Fifth, and Sixth Circuits disallowing separate First Amendment challenges to “truthful, nonmisleading, and relevant” informed consent disclosures while the Fourth Circuit permits them. This leads to a second open question: if Casey does not foreclose physicians’ First Amendment challenges to informed consent laws, what standard of review should apply?

This Comment proceeds in four parts. Part I discusses the Supreme Court’s abortion jurisprudence with particular emphasis on Casey. Part II analyzes the circuit split and the rationales of the Eighth, Fifth, Sixth, and Fourth Circuits. Part III looks closely at the language and reasoning of Casey and argues that it supports the view that First Amendment challenges to informed consent measures—even those that are truthful, nonmisleading, and relevant—can exist independently of the undue burden standard. Part IV advocates for intermediate scrutiny as the appropriate standard of review for such challenges.

A woman’s right to have an abortion has been constitutionally protected since the Supreme Court decided Roe v. Wade1717

in 1973. In Roe, a pregnant unmarried woman brought suit against Wade, a Texas district attorney, challenging an article of the Texas Penal Code that limited abortions to those done for the purpose of saving the life of the mother.1818 Roe raised the question: does the constitutional right to privacy encompass a woman’s decision to have an abortion?1919

The Supreme Court answered in the affirmative and struck down the Texas statute.2020

However, while acknowledging that the right to personal privacy included a woman’s decision to have an abortion, the Court did not leave this right unqualified. Instead, it developed a three-part framework roughly aligned with the trimesters of pregnancy, allowing for increased state interference and regulation as pregnancy progresses.2121 The Court acknowledged states’ “important and legitimate interest in potential life,”2222 but found this interest compelling only at the point of viability.2323 The framework broke down as follows: 1) until approximately the end of the first trimester, states could not interfere with a woman’s right to have an abortion; 2) after the first trimester but before viability, states could regulate abortion only “in ways that are reasonably related to maternal health;”2424 3) after viability, states could freely regulate abortion and even prohibit it, as long as exceptions existed for the health or life of the woman.2525

Roe’s trimester framework governed abortion regulations, albeit shakily,2626

for nearly two decades. In 1992, however, the Court offered a new approach in Casey. In Casey, Planned Parenthood brought a suit against Robert Casey, the governor of Pennsylvania, challenging a Pennsylvania law that restricted abortion access by requiring: 1) written informed consent from a woman seeking an abortion; 2) a twenty-four-hour waiting period between providing a woman with the informed consent information and performing an abortion; 3) if the woman was a minor, the informed consent of at least one parent; and 4) if the woman was married, a statement indicating her husband had been notified of the pending abortion.2727 The informed consent provisions required physicians to inform women of the nature of the procedure, the health risks of abortion and of childbirth, and the probable gestational age of the “unborn child.”2828 Women had to be informed of the availability of printed materials published by the state that described fetal development and provided information about medical assistance for childbirth, child support, and agencies providing adoption and abortion alternatives.2929 If requested, physicians had to provide these materials.3030 Under its new undue burden standard, the Court upheld all of the Pennsylvania provisions except for spousal notification.3131 Specifically, the Court noted that “the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the ‘probable gestational age’ of the fetus” did not create an undue burden.3232

While discarding Roe’s trimester framework, the Court claimed to affirm “Roe’s essential holding”3333

through the undue burden standard. This test has three clearly elucidated parts: first, a woman has the right to choose to have an abortion before viability and to obtain it without undue interference from the state;3434 second, the state has power to restrict abortions after fetal viability (but must allow exceptions for pregnancies endangering the life of the mother); and third, the state has a legitimate interest from the outset of pregnancy in protecting the health of women and the life of the fetus.3535 This new structure tempered Roe considerably: states could now regulate the procurement of abortions at all stages of pregnancy, provided the regulations did not constitute an undue burden having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”3636 Additionally, in an expression of the extent of its recognition of a state’s interest in “the life of the unborn,”3737 the Casey court allowed for “state measure[s] designed to persuade [women] to choose childbirth over abortion,”3838 provided the measures “reasonably related to that goal.”3939

While the petitioners in Casey challenged the Pennsylvania statute primarily as a violation of Roe, they also brought a First Amendment challenge, claiming the informed consent provisions impermissibly controlled physicians’ speech.4040

After assessing the informed consent provisions under the undue burden standard, the Court dismissed this alternative claim in three sentences:

All that is left of petitioners’ argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician’s First Amendment rights not to speak are implicated, see Wooley v. Maynard [citation omitted], but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State, cf. Whalen v. Roe [citation omitted]. We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.4141

41

Id. at 884.Hide

Thus, while overall the Court upheld the informed consent requirements under the undue burden standard,4242

its treatment of the First Amendment claim lacks clarity and does not expressly foreclose independent First Amendment challenges to informed consent provisions.

The undue burden standard remains good law. The Court used it in Gonzales v. Carhart,4343

and more recently in Whole Woman’s Health v. Hellerstedt.4444 While these watershed abortion cases demonstrate the Court’s continued commitment to the undue burden test, they did not deal with informed consent provisions or First Amendment claims in the abortion context. Confusion over Casey’s framing has created a circuit split regarding the permissibility of First Amendment challenges to abortion informed consent measures, with the Eighth, Fifth, and Sixth Circuits on one side, and the Fourth Circuit on the other.

A recent Supreme Court case also deserves mention. In National Institute of Family and Life Advocates v. Becerra (“NIFLA”),4545

crisis pregnancy centers challenged a California statute that(a) required licensed centers to post notices explaining the existence of publicly funded family-planning services, including abortion, and (b) required unlicensed centers to post notices stating that they were not licensed.4646 The Court found the fact that the notice requirement for licensed centers was not directly tied to a medical procedure to be dispositive.4747 Removed from an informed consent context, the licensed requirements were viewed as pure content-based regulations of speech.4848 Subject to at least intermediate scrutiny, the Court held the licensed notice requirements unconstitutional.4949 The Court also struck down the unlicensed center requirements as “unjustified and unduly burdensome.”5050

Relevant here, in its opinion the NIFLA Court characterized the informed consent provisions in Casey as regulations of professional conduct only incidentally burdening speech, a category subject to a lower standard of review.5151

This indicates a willingness of the current Supreme Court to consider informed consent provisions as regulations of conduct, not speech, thus weakening the case for robust First Amendment review. Respectfully, I do not believe the NIFLA Court’s framing conclusively demystifies Casey, as it occurs in dicta5252 and does not engage with alternative explanations for Casey’s reasoning. Moreover, even assuming the NIFLA court correctly characterized Casey, this can be read as limited to Casey’s facts. At best, read in conjunction with Casey, NIFLA “create[s] the guiding principle that reasonable regulations that facilitate informed consent to a medical procedure are excepted from heightened scrutiny”5353 —an uncontroversial proposition. Notwithstanding NIFLA, the scope of permissible First Amendment challenges to abortion informed consent measures remains an open question.

The Eighth Circuit has twice upheld the supremacy of the undue burden test when considering First Amendment challenges to informed consent requirements. In Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds (Rounds I),5454

the Eighth Circuit, sitting en banc, rejected a compelled-speech challenge to a South Dakota law requiring doctors to provide several statements to women seeking abortions as part of obtaining informed consent. These included statements that abortion “will terminate the life of a whole, separate, unique, living human being,” which “the pregnant woman has an existing [constitutionally protected] relationship with,” and “[t]hat by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated.”5555

Overruling the district court, the Eighth Circuit found the mandated statements well within the state’s regulatory power. The court concluded:

Casey and Gonzales establish that, while 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, non-misleading 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.5656

56

Id. at 734–35. Hide

Therefore, in order to succeed on its compelled speech claim, Planned Parenthood had to show that the mandated disclosures were untruthful, misleading, or irrelevant.5757

The statute at issue defined “human being,” for the purposes of the informed consent provision, as “including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation,”5858 and the court held the statutory definition controlling.5959 Given this, the court found the challenged disclosures truthful and relevant.6060 In sum, the Eighth Circuit held Casey and Gonzales precluded First Amendment claims to informed consent laws when the speech at issue is truthful, nonmisleading, and relevant.

Four years later, the Eighth Circuit, again sitting en banc and again reversing the district court, reaffirmed its reading of Casey and upheld another part of the South Dakota statute in Rounds II.6161

As part of obtaining informed consent, the statute required physicians to provide a written “description of statistically significant risk factors to which the pregnant woman would be subjected, including [i]ncreased risk of suicide ideation and suicide.”6262 The Eighth Circuit held that this statement did not imply a causal link between abortion and suicide but rather indicated relative risk, which it found sufficiently supported by the scientific record and therefore truthful.6363 The court further held that despite medical and scientific uncertainty, the record did not conclusively rule out abortion as “a causal factor in the observed correlation between abortion and suicide,”6464 and therefore the required disclosure was not misleading or irrelevant.6565

The Fifth Circuit held similarly in Texas Medical Providers Performing Abortion Services v. Lakey.6666

In Lakey, physicians and abortion providers brought a section 1983 action against the state of Texas, challenging a recently enacted bill that significantly amended Texas’ informed consent laws.6767 The challenged amendments required physicians performing abortions to “perform and display a sonogram of the fetus, make audible the heart auscultation of the fetus [and] explain the results of each procedure.”6868 A woman had to certify her physician’s compliance with these measures and wait 24 hours before receiving an abortion.6969 The statute permitted a woman to decline to view the images or hear the heartbeat, but she could only decline to receive an explanation of the sonogram images under three conditions: 1) if her pregnancy resulted from rape or incest, 2) if she was a minor, or 3) if the fetus had a documented irreversible medical condition or abnormality.7070 The district court granted a preliminary injunction against the disclosure provisions as impermissible compelled speech.7171

The Fifth Circuit reversed, finding that Casey precluded the plaintiffs’ First Amendment challenge. The Lakey court focused on Casey’s brief discussion of the First Amendment claim, finding its absence of inquiry into compelling interests or narrow tailoring to be the “antithesis of strict scrutiny.”7272

The Fifth Circuit then turned to Gonzales, noting its reaffirmance of Casey in upholding states’ “significant role in regulating the medical profession” and the government’s ability to “use its voice and regulatory authority to show its profound respect for the life within the woman.”7373 The court found that these two cases clearly established that “informed consent laws that do not impose an undue burden on the woman’s right to have an abortion are permissible if they require truthful, nonmisleading, and relevant disclosures,” and “are part of the state’s reasonable regulation of medical practice and do not fall under the rubric of compelling ‘ideological’ speech that triggers First Amendment strict scrutiny.”7474 The court supported this interpretation of the case law by citing the Eighth Circuit in Rounds I.7575

The Fifth Circuit then noted that, unlike the plaintiffs in Casey and Rounds, the plaintiff-appellees in the case at hand had brought solely a First Amendment claim.7676

The court found this impermissible:

If the disclosures are truthful and non-misleading, and if they would not violate the woman’s privacy right under the Casey plurality opinion, then Appellees would, by means of their First Amendment claim, essentially trump the balance Casey struck between women’s rights and the states’ prerogatives. Casey, however, rejected any such clash of rights in the informed consent context.7777

77

Id.Hide

The Fifth Circuit finally denied the contention raised by plaintiff-appellees that the disclosure requirements at issue differed qualitatively from those in Casey.7878

The appellees’ argument here focused on two distinctions. First, because the disclosures of the sonogram and fetal heartbeat were “medically unnecessary,” they went “beyond the standard practice of medicine within the state’s regulatory powers.”7979 Second, requiring the physician to explain the results of the sonogram and fetal heart auscultation verbally “makes the physician the ‘mouthpiece’ of the state.”8080 The Fifth Circuit dismissed the first point under Casey and Gonzales.8181 As to the second point, the court held that this “mode of delivery does not make a constitutionally significant difference from the ‘availability’ provision in Casey [t]he mode of compelled expression is not by itself constitutionally relevant, although the context is.”8282 For all these reasons, the court found that the provisions did not violate the First Amendment because they were “sustainable under Casey [and] within the State’s power to regulate the practice of medicine.”8383 The Fifth Circuit denied petitioners appeal for en banc review.8484

The Sixth Circuit recently confronted the issue and aligned in decision with the Eighth and Fifth Circuits. In EMW Women’s Surgical Center, P.S.C. v. Beshar,8585

the court overruled the district court and upheld the constitutionality of a Kentucky informed consent statute (H.B.2) against a First Amendment challenge.8686 Echoing the Texas law at issue in Lakey, H.B.2 required that before giving an abortion a physician perform an ultrasound, display and explain the images, and auscultate the fetal heartbeat.8787 Although any patient could request that the physician turn down the volume of the auscultation, the law provided no exemptions from these disclosures except in the case of a medical emergency or a medically necessary abortion.8888

Relying heavily on its reading of Casey and NIFLA, the Beshar court determined that “First Amendment heightened scrutiny does not apply to incidental regulation of professional speech8989

that is part of the practice of medicine and such incidental regulation includes mandated informed-consent requirements, provided that the disclosures are truthful, non-misleading, and relevant.”9090 Characterizing the sonogram provisions as “‘materially identical’”9191 to Casey’s requirements and highly relevant,9292 the court found no constitutional infirmity in H.B.2. The court discussed Lakey and Rounds I at length, noting their “support [for] our holding today.”9393

Two years after the Fifth Circuit’s decision in Lakey, but before the Sixth Circuit’s decision in Beshar, the Fourth Circuit addressed a compelled speech challenge to a strikingly similar statute. In Stuart v. Camnitz,9494

physicians and abortion providers challenged the Display of Real-Time View Requirement of the North Carolina Woman’s Right to Know Act (“WRKA”).9595 The requirement mandated ultrasounds for all women seeking abortions and required physicians to display the sonogram and “describe the fetus in detail, ‘includ[ing] the presence, location, and dimensions of the unborn child within the uterus and the number of unborn children depicted,’ as well as ‘the presence of external members and internal organs, if present and viewable.’”9696 It also required physicians to provide women the option of hearing the fetal heart auscultation.9797 The WRKA allowed exceptions to these measures only in the case of medical emergency; however, a woman could always “‘avert[ ] her eyes from the displayed images’ and ‘refus[e] to hear the simultaneous explanation and medical description’ by presumably covering her eyes and ears.”9898 The district court, applying heightened, intermediate scrutiny, held that these requirements violated the physicians’ First Amendment rights to free speech and entered a permanent injunction.9999

Unlike in Lakey or Rounds, here a unanimous Fourth Circuit affirmed.100100

Analyzing the regulations first through a compelled speech lens, the Fourth Circuit held “[t]he Requirement [the regulations described above] is quintessential compelled speech. It forces physicians to say things they otherwise would not say.[T]he statement compelled here is ideological; it conveys a particular opinion.”101101 Referencing Lakey, the court acknowledged that the mandated disclosures at issue were factual but did not find this fact dispositive:

[While] it is true that the words the state puts into the doctor’s mouth are factual, that does not divorce the speech from its moral or ideological implications. “[C]ontext matters.” [The regulations] explicitly promote[] a pro-life message by demanding the provision of facts that all fall on one side of the abortion debate—and does so shortly before the time of decision when the intended recipient is most vulnerable.102102

102

Id.Hide

The Fourth Circuit then assessed the requirements as standard medical regulation, acknowledging that states retain rights to regulate professional speech and mandate informed consent to medical procedures.103103

Despite this, the court held “individuals [do not] simply abandon their First Amendment rights when they commence practicing a profession,”104104 and that “[w]ith all forms of compelled speech, [the court] must look to the context of the regulation to determine when the state’s regulatory authority has extended too far.”105105 In the context of the WRKA, the court held that “the confluence of these factors points toward borrowing a heightened intermediate scrutiny standard used in certain commercial speech cases.”106106

The Fourth Circuit explicitly stated its reasons for diverging from the Fifth and Eighth Circuits:

With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here the plurality simply stated that it saw ‘no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.’ That particularized finding hardly announces a guiding standard of scrutiny for use in every subsequent compelled speech case involving abortion.107107

107

Id. at 249.Hide

The court also held Gonzales, an undue burden case raising no First Amendment claim, inapplicable to the issue at hand. The court noted that Gonzales “says nothing about the level of scrutiny courts should apply when reviewing a claim that a regulation compelling speech in the abortion context violates physicians’ First Amendment free speech rights.”108108

The Fourth Circuit thus found its First Amendment analysis consistent with Casey and Gonzales. The State appealed to the Supreme Court, which denied certiorari.109109

The Eighth, Fifth, and Sixth Circuits have curtailed First Amendment protection for physicians in the context of abortion informed consent measures. Each circuit held that when mandated informed consent disclosures are truthful, nonmisleading, and relevant to the decision to have an abortion, they are permissible under Casey as long as they do not constitute an undue burden. Essentially, these circuits have disallowed independent First Amendment analysis of physicians’ compelled speech claims by collapsing free speech analysis into the undue burden test. This reasoning misinterprets Casey. As Nadia Sawicki writes, “it is essential to recognize that the ‘truthful, not misleading, and relevant’ requirement is a condition on the constitutionality of disclosure laws under the Fourteenth Amendment’s ‘undue burden’ standard, rather than a condition of the First Amendment.”110110

As recently articulated by Judge Donald in her powerful dissenting opinion in Beshar:

The majority relies on undue burden jurisprudence to fashion a test that they believe comprehensively captures informed consent. The result is erroneous. The three elements the majority identifies—truthful, nonmisleading, and relevant—were drawn from Casey, a controlling case that considered both an undue burden and a First Amendment challenge. These three elements, however, were central only to Casey’s undue burden analysis. Nowhere are these elements even mentioned in Casey’s discussion of the First Amendment. It is a mistake to transpose Casey’s holding on undue burden to the First Amendment challenge here.111111

111

EMW Women’s Surgical Center, P.S.C. v. Beshar, 920 F. 3d 421, 448 (6th Cir. 2019) (Donald, J., dissenting).Hide

In other words, Casey holds that truthful, nonmisleading, and relevant informed consent disclosures do not per se violate a woman’s constitutional right to choose. Casey does not, however, indicate that such disclosures can never be subject to First Amendment review.

Common sense indicates that this must be the case. Imagine South Dakota revises its disclosure requirement with the only change being physicians are now required to stand up on a chair and yell at a woman that her abortion will end the life of a unique living human being. While this hypothetical obviously steps outside of the bounds of the regulations considered in Casey, the Eighth Circuit does not offer a framework through which to challenge it. The disclosure has already been held truthful, nonmisleading, and relevant, ending the First Amendment inquiry. While the yelling could be challenged as creating an undue burden, the Eighth Circuit would struggle to qualitatively differentiate it from the written statement, especially given the permissibility of regulations designed to dissuade women from choosing abortion.112112

Even if the Eighth Circuit invalidated this law under the undue burden standard, the fact remains that it would be impossible, under Eighth Circuit precedent, for a physician to challenge this law under the First Amendment. This significantly reduces protection of physicians’ speech.

It does not seem plausible that the Court would create this large exemption from First Amendment protection in such an ambiguous way. Justice Scalia famously wrote that “Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”113113

The same reasoning should apply to Supreme Court holdings, particularly in the context of the First Amendment. The Supreme Court has historically been hesitant to create exceptions to free speech protection. As the Court recently stated in NIFLA, “[t]his Court has ‘been reluctant to mark off new categories of speech for diminished constitutional protection,’”114114 and “[we have] been especially reluctant to ‘exemp[t] a category of speech from the normal prohibition on content-based restrictions.’”115115 In this context, reading the three sentences in Casey as creating a new category of lessened speech protection—for truthful, nonmisleading, and relevant informed consent disclosures—seems all the more implausible.116116 A simpler, more reasonable reading of Casey is that the Court, having already held the informed consent provisions permissible under the undue burden standard, and finding the regulations at issue within the usual confines of a state’s regulatory power, did not feel the need to explore the First Amendment issue further.117117

In its discussion of the First Amendment issues in Casey, the Court cited to Wooley v. Maynard118118

and Whalen v. Roe,119119 two seemingly conflicting cases. In Wooley, the Supreme Court applied strict scrutiny to a New Hampshire statute that required residents to display “Live Free or Die” on their license plates.120120 In Whalen, the Court upheld, as an appropriate use of state police power, a New York statute requiring physicians to disclose to the government prescription records of certain drugs.121121 As Robert Post writes, “[e]xactly how the strict First Amendment standards of Wooley are meant to qualify the broad police power discretion of Whalen is left entirely obscure.”122122 However, a close look at each case shows that Whalen should not qualify Wooley to the extent of foreclosing a physician’s ability to bring First Amendment challenges to informed consent laws.

The Supreme Court struck down the license plate statute in Wooley, recognizing that “the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.”123123

In Lakey, the Fifth Circuit took up Wooley as a defense against the plaintiffs’ contention that requiring physicians to voice the mandated information was constitutionally significant. The Lakey court cited Wooley as support for the statement that “[t]he mode of compelled expression is not by itself constitutionally relevant, although the context is.”124124 However, Wooley suggests more than that. Comparing the case to West Virginia State Board of Education v. Barnette,125125 the seminal case in which the Supreme Court acknowledged a First Amendment right to be free from compelled speech in the context of the school flag salute, the Wooley Court stated that “[c]ompelling the affirmative act of a flag salute involved a more serious infringement upon personal liberties than the passive act of carrying the state motto on a license plate, but the difference is essentially one of degree.”126126 This statement supports two suppositions: first, compelled speech is an infringement, and second, the extent to which it is compelled can affect the analysis. Therefore, the Lakey court’s exclusive focus on context is incomplete. Wooley indicates that the mode of compelled expression is also relevant insofar as it can heighten the severity of the infringement. A provision demanding that doctors voice the state’s information in their own words requires significantly more affirmative action than merely providing pamphlets. Thus, the provisions at issue in Lakey analogize more closely to Barnette than to Wooley, and Wooley suggests that this increases the gravity of the infringement.

Immediately following its reference to Wooley, the Casey court acknowledges that the medical context tempers its First Amendment analysis, citing to Whalen. In Whalen, the Court upheld, against a privacy challenge, a New York statute requiring that the state receive a copy of every prescription for a certain class of drugs categorized as highly dangerous.127127

In Lakey, the Fifth Circuit described Whalen in one sentence as a case “in which the Court had upheld a regulation of medical practice against a right to privacy challenge.”128128 Again, their synopsis is imprecise. In analyzing the constitutional validity of the provision, the Whalen court considered its effect on the independence of physicians and patients:

Nor can it be said that any individual has been deprived of the right to decide independently, with the advice of his physician, to acquire and to use needed medication the decision to prescribe, or to use, is left entirely to the physician and the patient. We hold that [the] impact of the patient-identification requirements in the [statute] on either the reputation or the independence of the patients is [not] sufficient to constitute an invasion of any right or liberty protected by the Fourteenth Amendment (emphasis added).129129

129

Whalen, 429 U.S. at 604 (emphasis added).Hide

While the Court did uphold the medical regulation, it clearly weighed, as highly significant, the regulation’s effect on the independence of patients’ and physicians’ decision making. With regards to the independence of patients, Casey and Gonzales admittedly allow for states to voice their disapproval of abortion even if it results in altering a woman’s choice to have one. Application of the undue burden standard thus encompasses any infringement on patients’ decision making in its calculation. However, while the undue burden standard speaks to the relevance of women’s independence in receiving abortions, it does not speak to that of the physicians offering them.

The Casey Court’s citation to Whalen indicates that infringements on the independence of doctors should be factored into the permissibility of medical regulations. Excluding First Amendment challenges to informed consent measures, however, removes the only avenue through which such infringements can be considered. Although in Casey, like in Whalen, the extent of infringement on the independence of the physician-patient relationship fell within permissible grounds, that determination was limited to the facts of Casey.130130

The provisions in Rounds, Lakey, Beshar, and Stuart, which prescribed descriptive and invasive procedures doctors must follow, intrude on the physician-patient relationship significantly more.

In sum, allowing physicians to bring First Amendment challenges to informed consent provisions does not “trump the balance Casey struck between women’s rights and the states’ prerogatives.”131131

Casey weighed women’s rights and states’ rights in crafting the undue burden standard, but it did no such careful weighing in regard to physicians’ First Amendment rights. Thus, when the burden on physicians’ speech goes significantly beyond the regulations upheld in Casey, Casey no longer applies.

Assuming that Casey does not foreclose physicians from bringing First Amendment challenges to informed consent laws, there remains an open question: what standard should courts use to review these challenges? With First Amendment claims, context drives this inquiry.132132

As noted by the Fourth Circuit in Stuart, informed consent laws lie at a unique intersection between impermissible content-based compelled speech and permissible state regulations of mandated informed consent to a medical procedure.133133 The Supreme Court has not conclusively weighed in on this muddled area of First Amendment law; consequently, Casey, with all its resulting confusion, offers the Court’s clearest declaration on the issue.

Content-based restrictions on speech are generally assessed under strict scrutiny.134134

For a law to pass strict scrutiny, it must further a compelling government interest and be narrowly tailored to effectuate that interest.135135 Many commenters consider this rigorous standard essentially fatal, as the Supreme Court has upheld only two speech restriction laws under it.136136 Freedom from compelled speech, or the right not to speak, has long been recognized as protected under the First Amendment. Compelled speech is necessarily content-based and thus also assessed under strict scrutiny.137137 Viewed purely through this lens, informed consent laws that compel physician speech, like those in Rounds, Lakey, Beshar, and Stuart, would be reviewed under strict scrutiny and would almost certainly be stricken down.

However, compelled speech of medical professionals runs up against another line of precedent. States have police powers through which they can regulate medicine and other professions.138138

Courts generally review regulations of this sort under rational basis review, which merely requires a statute be rationally related to a legitimate government interest.139139 While not quite a rubber stamp, most laws pass this deferential standard. Additionally, the necessity of informed consent to medical procedures is well established under tort law.140140 Similarly, physicians are routinely held liable for malpractice, even when the harm results from a physician’s speech or lack thereof (e.g. failure to inform a patient of a procedure’s risks or giving incorrect medical advice).141141

In Casey, the Court acknowledged both these lines of precedent: “the physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.”142142

Beyond this statement and the citations to Wooley and Maynard discussed in Part III, the Casey Court did not offer a precise standard through which to assess infringements on physicians’ First Amendment rights.

While the appropriate standard could thus fall anywhere from strict scrutiny to rational basis review, the endpoints of the range can be eliminated from consideration. A standard of strict scrutiny seems hard to reconcile with Casey.143143

As the Lakey court rightfully notes, the Casey Court’s three-sentence First Amendment discussion “is clearly not a strict scrutiny analysis [because] [i]t inquires into neither compelling interests nor narrow tailoring.”144144 Moreover, applying strict scrutiny to abortion informed consent laws would run afoul of the Court’s historic recognition of state laws regulating the medical profession, a point noted by the Casey court itself.145145 Sound policy reasons buoy this recognition. Patients depend on physicians to inform them of their treatment options, but they usually lack the necessary medical background or understanding to validate the information independently. Thus, by necessity, patients place blind trust in the advice they receive from their doctors. This trust is made less blind, however, by two systems working in tandem: indirect regulation through medical malpractice liability, and direct regulation by the state. Reviewing these regulations under strict scrutiny would inappropriately encumber this system, even in the limited context of abortion informed consent measures.

Rational basis review, at first blush, appears better supported by the language used by the Casey court in its discussion of the First Amendment claim. The Court’s use of the word “reasonable” can be read as synonymous with rational,146146

and its cursory First Amendment analysis could indicate deference to the state’s regulatory power. However, as Carl Coleman explains, “the plurality made this statement only after having already determined (in the context of its due process analysis) that the state had a ‘substantial’ interest in requiring the disclosures and noting ‘the ways in which the speech requirement was narrowly drawn.’”147147 Given this context, the word “reasonable” alone should not determine the standard of review. Moreover, application of rational basis review would render the discussion in Part III largely academic, because all of the informed consent measures mentioned so far would likely survive. This would essentially allow the carve-out of First Amendment protection for informed consent measures functionally claimed by the Eighth, Fifth, and Sixth Circuits. Thus, for the reasons discussed in Part III, rational basis review cannot be the appropriate standard.

In sum, both extremes—strict scrutiny and rational basis review—fail as potential standards of review. Strict scrutiny is incompatible with the language in Casey and fails to acknowledge the state’s legitimate regulatory role in the realm of medical disclosures. Rational basis review ignores the context of Casey and would, in effect, impermissibly excuse abortion informed consent measures from meaningful review.

Rejecting both strict scrutiny and rational basis review eliminates the clearest available standards, forcing an examination of the mushy middle ground of First Amendment protection. As will be discussed in sub-section D, intermediate scrutiny emerges from this search as the best standard. Reaching that conclusion requires analysis of why other possible intermediate standards fail in the context of informed consent to abortion.148148

In this section, two other potential standards that have been offered as options will be examined: “truthful, nonmisleading, and relevant” (hereinafter “TNR”), and “factual and noncontroversial” (the Zauderer standard). Both fail to strike the right balance of protection.

As discussed in section II(a), the Eighth, Fifth, and Sixth circuits used a “truthful, nonmisleading, and relevant” standard to assess the challenged informed consent measures. In so doing, these circuits inappropriately folded First Amendment analysis into the undue burden test (see section III). This does not, however, mean that a TNR standard should be disregarded per se. While the Eighth, Fifth, and Sixth circuits erred in failing to acknowledge the necessity of an independent First Amendment analysis, had they done so, TNR could have been an appropriate standard. Such an approach would uphold informed consent measures that mandate truthful, nonmisleading, and relevant disclosures.

A TNR test has the benefit of seemingly easy compatibility with Casey. The Casey court held the truthful, nonmisleading, and relevant disclosures at issue in the Pennsylvania law admissible under the undue burden test. It then went on to find no First Amendment issue with the mandated disclosures. It follows that, at a minimum, truthful, nonmisleading, and relevant disclosures similar in kind to those seen in Casey pass First Amendment scrutiny.149149

Applied beyond Casey, however, TNR offers a slippery standard. The circuit split discussed in Part II illustrates this: in some jurisdictions, information relevant to having an abortion includes an often unnecessary and costly medical procedure, while in others it does not. Laboratories of democracy notwithstanding, a standard does not offer good guidance if speech relating to a medical procedure can be so differently conscripted depending on the state in which it occurs. Pulling a unique First Amendment standard from Casey stretches the Court’s acknowledgment of abortion exceptionalism beyond recognition.150150

Another midway standard comes from the context of commercial speech. In Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio,151151

the Court upheld an Ohio Disciplinary Rule that required attorneys advertising contingent-fee based representation to disclose that clients may have to pay certain costs if they lose.152152 The Court in Zauderer indicated that disclosure requirements mandating only “purely factual and uncontroversial information about the terms under which services will be available”153153 would be upheld if they “reasonably related to the State’s interest in preventing deception of consumers,”154154 and were not “unjustified or unduly burdensome.”155155 From this language the Zauderer standard emerged, namely “more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech.’”156156 Elements of the reach and scope of Zauderer remain unclear.157157

Some commentators have suggested that courts could use the Zauderer standard to assess regulations relating to abortion, including informed consent measures.158158

Such an approach would uphold the constitutionality of factual and uncontroversial informed consent disclosures. Prior to NIFLA, this approach arguably had legs. In the wake of NIFLA, however, the use of Zauderer in the abortion context cannot stand. In considering the appropriate standard of review for the California notice requirement for licensed clinics, the Court stated: “The Zauderer standard does not apply here. The notice in no way relates to the services that licensed clinics provide. Instead, it requires these clinics to disclose information about state-sponsored services—including abortion, anything but an ‘uncontroversial’ topic. Accordingly, Zauderer has no application here.”159159 Arguably, informed consent measures differ qualitatively from the notice provisions in NIFLA because they relate more directly to the service being offered (abortion). However, NIFLA clearly colors abortion as a controversial topic, sharply circumscribing Zauderer’s application. Moreover, even without considering NIFLA, Zauderer review would likely strike down many of the informed consent measures upheld in Casey (while describing the nature of the procedure and associated health risks might pass, requiring notice of the probable gestational age of the child as well as state-sponsored materials regarding alternatives seems controversial). Given both this and the framing of abortion in NIFLA, it follows that abortion informed consent disclosures do not qualify for Zauderer review.

Intermediate scrutiny (sometimes also referred to as heightened scrutiny) straddles the line between rational basis review and strict scrutiny. It developed as a response to gender discrimination claims under the Fourteenth Amendment160160

and more recently has emerged as the standard for assessing regulations of some commercial speech.161161 Intermediate scrutiny requires that the state demonstrate “at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest,”162162 with a “fit between the legislature’s ends and the means chosen to accomplish those ends.”163163 Courts sometimes define the appropriate fit as one that is not “more extensive than necessary.”164164 Under intermediate scrutiny, “[t]he court can and should take into account the effect of the regulation on the intended recipient of the compelled speech, especially where she is a captive listener.”165165

Intermediate scrutiny appropriately balances the tensions created by informed consent measures. On the one hand, the regulation of private medical decisions falls within the ambit of the state. On the other hand, abortion is a matter of public concern, and many informed consent measures are designed precisely to express the state’s disapproval of the practice in general. The Supreme Court has repeatedly noted that “[i]t is speech on ‘matters of public concern’ that is ‘at the heart of the First Amendment’s protection’. In contrast, speech on matters of purely private concern is of less First Amendment concern.”166166

Governmental regulations of speech on matters of public concern traditionally trigger a higher level of scrutiny.167167 Abortion qualifies as an issue in both realms: private as applied to a woman’s particular circumstances, which are wholly her own, yet a controversial part of the public forum. In choosing the dialogue between a woman and her physician as a time during which to express disapproval of abortion, states have introduced the public forum into a “deeply personal decision[].”168168

This raises concerns of government overreach, flagged by Justice Thomas in NIFLA. Justice Thomas observed that the Supreme Court “has stressed the danger of content-based regulations ‘in the fields of medicine and public health, where information can save lives.’”169169

Noting that “‘[d]octors help patients make deeply personal decisions, and their candor is crucial,’”170170 Justice Thomas warned that “[t]hroughout history, governments have ‘manipulat[ed] the content of doctor-patient discourse to increase state power and suppress minorities.”171171 Context can either increase or mitigate this concern. State regulations designed to empower personal and private decisions by requiring physicians to provide largely uncontroversial information lessen this concern. For example, a law requiring disclosure of specific risks about electroconvulsive treatment mostly affects a private treatment decision and does not implicate a greater public issue. Content-based regulations that touch on issues of public concern, however, increase the fear of government manipulation, and therefore require more protection under the First Amendment. Using intermediate scrutiny for abortion informed consent measures recognizes the state’s regulatory power while ensuring that regulations impacting speech on an issue of public concern receive adequate First Amendment protection.172172

Moreover, informed consent measures implicate two constitutional guarantees: a woman’s right to terminate her pregnancy, and her physician’s right to be free from compelled speech. As noted, the law handles each separately, under the undue burden test and the First Amendment, respectively. However, a better approach would recognize that each infringement does not occur in a vacuum. In compelling physicians’ speech and conduct, informed consent measures necessarily touch on a woman’s right to an abortion as well. The law should recognize this dual infringement by adopting a higher standard of review in assessing the relevant free speech claim—namely, intermediate scrutiny.173173

Notably, the Supreme Court has adopted such a hybrid rights approach in regard to one category of free speech claims.174174

Analogous reasoning should apply in the case of abortion informed consent measures. This is not to advocate for a generally more liberal adoption of the hybrid rights approach. However, such an approach would be particularly appropriate in the limited context of abortion informed consent measures, where the relevant harm to women is deemphasized when informed consent measures are challenged under the First Amendment (see part E). A hybrid rights approach would also help insulate informed consent measures from being challenged as regulations of conduct that only incidentally burden speech, thereby ensuring a higher standard of review.

Advocating for intermediate scrutiny as the correct standard for assessing abortion informed consent requirements necessitates addressing its consistency with Casey. The Fourth Circuit in Stuart offered intermediate scrutiny as consistent with Supreme Court precedent but did not explain its rationale.175175

Examined closely, consistency with Casey is the main weakness of intermediate scrutiny. The problem does not stem from the text;176176 rather, one can legitimately argue that the informed consent provisions upheld in Casey would flunk intermediate scrutiny. A state’s substantial interest in the potentiality of life is clearly supported by Casey and Gonzales. This leaves only an inquiry into the fit between this end and the means used in Casey. It is not clear that requiring physicians to tell a woman the probable gestational age of the fetus, and give her information regarding abortion alternatives, are measures reasonably drawn to achieve that interest. Perhaps an appropriate fit would only require that physicians offer to tell the gestational age, and that the state raise awareness about abortion alternatives through a general advertising campaign rather than through doctors. One can thus argue that the Casey provisions overstep a state’s interest and therefore would fail intermediate scrutiny review.

However, one can also plausibly argue that the Casey requirements would withstand intermediate scrutiny review. In light of the weight the Supreme Court has given to this particular state interest, the disclosure requirements in Casey seem minimally invasive and appropriately tailored. To put it simply, this is a close call. However, given the other reasons weighing in favor of intermediate scrutiny, a slightly precarious relationship with Casey should not ultimately be disqualifying. Rather, courts should use Casey as a helpful guide for framing their fit inquiry. Regulations similar in kind to those in Casey, such as giving the age of the fetus or offering printed materials describing alternative options and support, can be seen as representative of the appropriate balance between a state’s interest in potential life and the means it can use to further it.

The context of #MeToo also supports the use of intermediate scrutiny for assessing informed consent regulations. When Casey replaced Roe’s trimester system, it fundamentally altered the reproductive rights of women. Casey’s undue burden standard has allowed states to encumber pre-viability abortions through a wide range of regulations. The laxity of the undue burden standard as a tool through which to attack these increasingly severe state regulations has created a special need for First Amendment claims in this context.

First Amendment claims to informed consent measures, however, necessarily shift the focus from women to their doctors. The relevant constitutional harm is no longer the burden on the woman, but rather the infringement on her doctor. Particularly in the context of #MeToo, this should give us pause. The #MeToo movement has shone a bright and harsh light on the prevalence of sexual violence and harassment against women. While sexual harassment is a critical issue, #MeToo also goes beyond this. At its core, it speaks to our culture’s historic and deeply-rooted disregard of women’s agency in all aspects of life, from the bedroom, to the boardroom, to the street. The Court in Casey acknowledged that the right to an abortion is justified in part by “the right to physical autonomy.”177177

We should consider the laws discussed earlier in this light. Giving a woman false information that abortion increases her suicide risk tells her that the state knows her better than she knows herself. Forcing her to endure an invasive medical procedure solely to show her images of the pregnancy she came to the doctor to terminate implies that she does not fully know what she is doing.

This harm is lost, though, when framing the legal issue under the First Amendment. This is not to question the exigency of free speech concerns. However, the informed consent laws considered in this Comment were designed, above all, to impact women seeking abortions, not their doctors. By focusing on physicians, we surrender the interests of women to those of others.178178

This denies women agency in yet another arena where it has been historically neglected: the courtroom. Particularly in the era of #MeToo, we shouldn’t lose sight of this quiet injustice.

The undue burden test does not adequately protect women’s agency and autonomy when seeking an abortion. Free speech challenges to abortion informed consent measures offer a second-best tool with which to attack invasive regulations. Assessing these regulations through intermediate scrutiny allows courts to consider how a state has tailored a regulation and its effect on the listener. In this inquiry, there is room to consider a regulation’s impact on women. Therefore, adopting intermediate scrutiny as the standard of review for informed consent measures does some work toward remedying the harm done by the First Amendment framing of this issue.

In crafting the undue burden standard in Casey, the Supreme Court carefully weighed the rights of women and the rights of the state. The rights of physicians, however, received no such measured consideration. Reading Casey as exempting abortion informed consent provisions from First Amendment challenge bends reason to the breaking point. Casey does not foreclose these challenges, nor does it offer a precise standard with which to review them. Intermediate scrutiny is the only standard that appropriately handles the conflicting interests at the heart of abortion informed consent regulations, particularly in the era of #MeToo.