Speech as Speech: "Professional Speech" and Missouri's Informed Consent for Abortion Statute

By Essma, Michael J. | Missouri Law Review, Spring 2019 | Go to article overview

Speech as Speech: "Professional Speech" and Missouri's Informed Consent for Abortion Statute


Essma, Michael J., Missouri Law Review


I. INTRODUCTION

Does life begin at conception? Do women need to see a sonogram to make an informed decision about whether they want an abortion? Some state legislatures believe so. (1) Laws mandating politically driven doctor-patient dialogue affect one of the hallmarks of the physician-patient relationship: a patient's trust in the physician's expertise. The common law and statutory requirement that a patient provide informed consent for a medical procedure facilitates the development of trust between patient and physician by allowing the patient to understand the procedure and discuss her options with her physician. (2) However, provisions of abortion-specific informed consent statutes that require physicians to communicate to the patient messages with which the physician disagrees undermine this trust. As opined by one reproductive health physician, "[T]he doctor-patient relationship is based on trust--and how does a patient trust us if we're giving them false information because we have to?" (3)

Just as patients have an interest in a clear understanding of the procedure, physicians possess liberty and autonomy interests when discussing their professional beliefs. (4) In an ever-changing field like medicine, "interfer[ence] with physician-patient speech... affects the development of new ideas." (5) Additionally, power dynamics inherent in the doctor-patient relationship magnify the importance of the doctor's ability to speak freely because patients rely on the doctor's medical judgment. (6) Indeed, state-mandated messages present "the danger that patients will be coerced and confused by government messages delivered by physicians." (7) However, state legislatures still need the ability to regulate the conduct of professionals, such as physicians. By extending the traditional doctrine of informed consent to its outermost limits, abortion-specific laws tread in the middle of several competing interests, such as a physician's free speech rights, a patient's right to accurate information, and the State's power to regulate the medical profession.

Courts have had difficulty with compelled speech challenges to informed consent statutes because of the intersection between speech and conduct. (8) Requirements that a physician provide a patient with controversial statements regarding the beginning of life represent a perplexing intersection between the freedom of speech protected by the First Amendment and the State's interest in regulating the medical profession. In fact, some have observed that "the regulation of professional speech is theoretically and practically inseparable from the regulation of medicine." (9) This inevitably complicates the determination of the level of scrutiny under which courts should review abortion informed consent statutes.

A balance needs to be struck between permitting state legislatures to regulate abortions like any other medical procedure and preventing legislatures from compelling physicians to make statements with which they fundamentally disagree. This is a difficult conceptual problem, as shown by myriad inconsistencies in rulings amongst the federal circuit courts. (10) Previously, the United States Supreme Court provided little guidance in reviewing potentially objectionable informed consent disclosures in the abortion context. (11) However, the Court's recent decision in National Institute of Family and Life Advocates v. Becerra, (12) which involved a statute requiring pro-life pregnancy centers to provide patients with certain information, clarified how courts should determine the level of scrutiny when reviewing informed consent disclosures. This decision--initially viewed as a win for pro-life organizations in pro-choice states (13) --may ironically become a win for abortion providers in pro-life states because of the difficult task the courts face in balancing the competing interests of free speech and the regulation of the medical profession.

Part II of this Note discusses the background of the Missouri informed consent statute and compares it with other states' informed consent statutes. …

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