The right to remain silent: a First Amendment analysis of abortion informed consent laws.

• Author: Pile, Whitney D.

1. INTRODUCTION

   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.

2. LEGAL BACKGROUND

   1. 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. (18) At issue in Wooley was a New Hampshire state law making it a crime to obscure "the figures or letters" on any license plate. (19) The plaintiff, Maynard, was a Jehovah's Witness who was convicted of violating that law after he covered the portion of his license plate displaying the New Hampshire state motto, "Live Free or Die," because he believed that a message advocating death was directly contradictory to his religion. (20) Maynard then brought an action seeking an injunction against the enforcement of the law, insofar as it made it a criminal offense to obscure the motto. (21) The United States District Court for the District of New Hampshire found that the act of covering the motto "Live Free or Die," qualified as an act of symbolic speech and that the State's interest "in the enforcement of its defacement statute is not sufficient to justify the restriction on [Maynard's] constitutionally protected expression." (22)

      On appeal, the Supreme Court looked to Barnette and explained that in addition to protecting the freedom to speak, the First Amendment also protects "the right to refrain from speaking at all." (23) In comparing Wooley to Barnette, the Court noted that the fact patterns of the two cases were not analogous: while the statute at issue in Barnette compelled an affirmative act by requiring students to recite a pledge, the New Hampshire law merely required the passive act of carrying a motto on a license plate. (24) However, the Court found that the difference between the affirmative act in Barnette and the passive act in Wooley was only a matter of degree and that the New Hampshire law still had the effect of forcing a private citizen to foster an ideological point of view contrary to his own belief. (25) Finding that the state's interests (26) were not sufficient to justify the law, the Court held that New Hampshire could not compel individuals to display the state's motto on license plates. (27) The Court specifically explained that "where the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message." (28)

      The Supreme Court again examined the issue of compelled speech in 1986. (29) In Pacific Gas & Electric Co. v. Public Utilities Commission, the Supreme Court examined whether the California Public Utilities Commission could require a privately owned utility company to include the speech of a third party in its billing envelopes, when the utility company disagreed with the content of that speech. (30) Pacific Gas & Electric Company was a privately owned utility company that distributed monthly newsletters in its billing statements in order to fill the "extra space" in its envelopes. (31) However, the California Public Utilities Commission determined that "extra space" in utility statement envelopes was the property of the ratepayers and began requiring all utility companies to include a newsletter produced by a different organization four times during the year. (32)

      Pacific Gas argued that following Wooley, it had the constitutional right not to disseminate a message with which it disagreed and that its right was violated by the Commission's order. (33) Because the speech contained in the newsletter at issue was content based, the Court noted that the Commission's decision could be upheld only if it "were a narrowly tailored means of serving a compelling state interest." (34) Although the Court found that the State may have had a compelling interest in ensuring fair and effective utility regulation, it was unable to find a relevant correlation between that regulation and the State forcing utility companies to distribute a newsletter. (35) Therefore, the Court held that the Commission infringed upon the First Amendment rights of Pacific Gas by requiring utility companies to associate themselves with the viewpoints of others and by selecting the viewpoints to be expressed in a content-based manner. (36)

   2. The Constitutionality of Informed Consent Laws

      While Barnette and Wooley laid the foundation for analyzing compelled speech cases, special complications arise when the speech involved is part of an informed consent provision of an abortion law. Although courts have struggled to balance a state's legitimate right to regulate the medical profession against the possibility of physicians being forced to express views contrary to their own professional judgment, courts have often stopped short of examining the issue in the context of the First Amendment. (37)

      After the Supreme Court held in Roe v. Wade that a woman has the right to decide whether to terminate her pregnancy, (38) certain states enacted legislation designed to test the limits of the Court's holding. (39) The Court confronted such legislation in the 1978 case City of Akron v. Akron Center for Reproduction Health, which came about after the City of Akron enacted an ordinance setting forth seventeen different provisions intended to regulate the performance of abortions. (40) The ordinance contained an informed consent provision, which required physicians to inform patients:

      That the unborn child is a human life from the moment of conception and that there has been described in detail the anatomical and physiological characteristics of the particular unborn child ... including, but not limited to, appearance, mobility, tactile sensitivity, including pain, perception or response, brain and heart function, the presence of internal organs and the presence of external members.... That abortion is a major surgical procedure which can result in serious complications, including hemorrhage, perforated uterus, infection, menstrual disturbances, sterility and miscarriage and prematurity in subsequent pregnancies.... (41) Not long after the ordinance was enacted, the United States District Court for the Northern District of Ohio invalidated...