July 2014 Bar Bulletin
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July 2014 Bar Bulletin

Are States Unlawfully Encroaching on Physician Speech?

By Margaret Hazuka and Janet Chung


Informed Consent, Abortion Counseling and the First Amendment

In the final days of May, the Louisiana House of Representatives passed a bill regulating physicians' discussions with patients considering abortions.1 Signed into law by Gov. Bobby Jindal, the new statute requires physicians to supply these patients with a "Point of Rescue" pamphlet that contains information of the mental health risks allegedly associated with abortion, as well as a list of mental health resources available (none of which may be an abortion provider).2 Louisiana is but the most recent addition to the list of states with laws requiring physicians to inform women of the alleged negative impacts of abortion.3

These laws raise a largely unsettled constitutional question regarding whether the First Amendment protects physicians from compelled speech within the physician-patient relationship. The U.S. Supreme Court addressed abortion providers' First Amendment challenge to requirements that they give information about the risks of abortion and childbirth in a mere three sentences in its 1992 decision in Planned Parenthood of Southern Pennsylvania v. Casey.4 There, the Court held that, while the physician's First Amendment rights not to speak were implicated, they were implicated "only as part of the practice of medicine, subject to reasonable licensing and regulation." Therefore, the Court found "no constitutional infirmity in the requirement that the physician provide the information mandated by the State" in the Pennsylvania law.5

Without expressly stating so, the Court in Casey subjected physician speech to a rational basis review generally reserved for commercial speech,6 rather than the strict scrutiny analysis associated with most cases involving state-mandated speech. State and federal courts since Casey have upheld informed consent laws, reasoning that because the state-mandated speech is not technically untrue or misleading, the state was reasonably regulating the medical profession without creating an undue burden on a woman's right to an abortion.7

But should the courts be using the standard applied to commercial speech - whether the speech is untruthful or misleading - to determine whether these laws violate physicians' speech rights? After all, the physician-patient relationship encompasses so much more than a commercial transaction.

The nature of medical consultations requires that a patient trust her doctor to give sound medical advice, and that a doctor respect her patient's autonomy and fundamental right to choose what is best for her health. It has long been accepted that this relationship must be protected with respect to physicians who may abuse the unequal power they gain from their medical expertise.8 Indeed, there has been an increased focus on the concept of "shared decision making" between patients and providers, treating the relationship as a collaboration that leads to an agreement about a health care decision.9

It is equally important that this physician-patient relationship also be protected from biased and politically motivated intrusions by state governments. However, courts have upheld abortion laws that allow the government to ignore scientific and medical data in favor of politically charged and misleading conclusions about the risks of abortion and the beginning of human life.

Laws in five states require that a physician tell each patient, verbally or in pamphlet form, that abortion is the termination of a separate, unique, living human being10 or that life begins at conception.11 Despite the controversial and often misleading implications of such statements, courts have instead determined that because a fetus is a human being in the "homo sapiens" sense, such language merely conveys a "biological truism" and is therefore permissible.12 Such an interpretation not only overlooks how manipulative such language can be, but also overlooks legitimate free speech concerns for physicians who may not agree with making statements so laden with ideological meaning.

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