The Right to Remain Silent: A First Amendment Analysis of Abortion Informed Consent Laws
Pile, Whitney D., Missouri Law Review
Since the United States Supreme Court legalized abortion in the 1973 decision Roe v. Wade, (1) the law governing the regulation of abortions has been in a constant state of flux. After the legalization of abortion, states began enacting informed consent laws in order to regulate what information a woman must be given before terminating her pregnancy; today, a total of 32 states have an informed consent law of some kind. (2) Many informed consent laws, such as that of Missouri, require that a woman receive information at least 24 hours before undergoing an abortion and that the abortion providers disclose the physical and mental risks involved with the termination of pregnancy. (3) However, states are increasingly considering informed consent laws that go well beyond merely informing women of health risks associated with abortion. (4) Fueled by pressure from anti-choice groups and bolstered by a predominantly conservative Supreme Court, (5) state legislatures introduced 92 bills regarding the expansion of informed consent requirements in 2006 alone. (6)
Proponents of expanded informed consent laws argue that such measures are necessary not only to protect the potential lives of fetuses, but also because some women are ignorant to what it means to be pregnant and may falsely believe that an abortion is merely a surgical operation that involves removing tissue. (7) In response, pro-choice groups argue that such informed consent laws are meant only to scare and mislead women who have otherwise made an informed choice to terminate their pregnancies. (8) In the past, courts have focused mostly on the rights of women and their unborn fetuses, but informed consent laws also directly implicate the rights of another group--abortion providers. While states are undoubtedly free to regulate abortions and to promote childbirth, (9) problems arise when states compel physicians to deliver to their patients information with which the physicians themselves do not agree. (10) In Planned Parenthood Minnesota v. Rounds, a 3-judge panel for the Eighth Circuit upheld a preliminary injunction against a South Dakota law compelling physicians to inform patients that an abortion terminates "the life of a whole separate, unique, living human being," stating that the challenged disclosures could be found to violate the First Amendment rights of physicians. (11) This Note argues that Planned Parenthood Minnesota v. Rounds was correctly decided; (12) it further argues that informed consent laws which force physicians to disseminate the State's moral ideology fall outside the purview of protections given to informed consent laws that involve the disclosure of scientific facts.
II. LEGAL BACKGROUND
A. Early Compelled Speech Cases: Barnette and Its Progeny
In the landmark case of West Virginia State Board of Education v. Barnette, the United States Supreme Court recognized that the First Amendment (13) includes not only one's right to express a viewpoint, but also the right to refrain from expression. (14) In order to promote national unity during the height of World War II, the West Virginia Board of Education adopted a resolution ordering all students to salute the American flag and to recite the Pledge of Allegiance--an act that was contrary to the religious beliefs of Jehovah's Witnesses. (15) Examining the differing ideologies, the Court noted that "what is one man's comfort and inspiration is another's jest and scorn." (16) Ultimately, the Court concluded that the act of compelling a flag salute and pledge "transcends constitutional limitations on [the local authorities'] power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." (17)
In the 1976 case Wooley v. Maynard, the Supreme Court examined whether a state could constitutionally force individuals to display an ideological message on their private property in a manner that would disseminate that message to the public. …