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

• Author: Essma, Michael J.

1. 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. Part II further explores how the United States Supreme Court and several federal circuit courts have decided compelled speech challenges to other informed consent statutes. Part III examines the Court's holding in Becerra and analyzes how that holding clarified the holding in Planned Parenthood v. Casey and its view on "professional speech." Finally, Part IV examines the constitutionality of the compelled speech aspects of Missouri's informed consent statute under existing precedent. Part V then argues that the United States Supreme Court's holding in Becerra suggests that the federal circuits have failed to apply the proper level of scrutiny to cases involving informed consent statutes.

2. LEGAL BACKGROUND

   This Part discusses the legal history of Missouri's informed consent statute and addresses several portions of Missouri's statute that compel speech. Then, this Part discusses a phrase inserted in Missouri's statutory preamble that faced constitutional challenges at the United States Supreme Court. Next, this Part reviews Casey, (14) a landmark case involving compelled speech in informed consent to abortion statutes, and its implications on informed consent statutes. Finally, this Part will consider the current circuit split on professional speech in the context of informed consent for abortion statutes in the wake of Casey.

   1. Informed Consent Laws Generally

      Since the Court recognized abortion as a fundamental liberty protected by the Due Process Clause of the Fourteenth Amendment in Roe v. Wade, (15) pro-life lawmakers have used informed consent laws to limit the number of abortions. (16) Informed consent laws place an array of restrictions on access to abortion, such as waiting periods, in-person counseling, viewing ultrasounds, and presenting written materials that inform the patient on the medical procedure. (17) According to the Guttmacher Institute, (18) every state requires that a patient provide informed consent to receive medical treatment, but thirty-four states have abortion-specific requirements. (19) Of those thirty-four states, thirty states require that written materials be offered or given to the patient. (20) Further, only eleven of those states require the physician to give the materials to the patient. (21) Finally, merely three states' informed consent laws are so stringent as to require the written materials to include a phrase acknowledging the belief that life begins at conception. (22) Missouri's informed consent statute is one of those three. (23)

   2. Common Law Informed Consent

      Informed consent has long been a staple of American tort law. The common law doctrine of informed consent stems from "two basic principles of law, the fiduciary nature of the physician-patient relationship and the fundamental legal principle that a competent individual has a right to determine what will be done with his or her body." (24) Traditionally, Missouri requires patients to "have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment" before making an informed decision. (25) The longstanding requirement of informed consent is inextricably linked to the medical procedure itself. Avoiding tort liability requires that infonned consent to the surgery be given as much as it requires the surgery be perfonned correctly. (26) This relationship between the medical procedure and informed consent categorizes the requirement that a physician provide a patient with certain information as professional conduct. (27) A physician accomplishes the conduct of providing information by speaking or the First Amendment equivalent of speaking--such as providing written materials; however, the mere fact that speech provides the only means to accomplish the conduct does not prevent that conduct from being considered as professional conduct for purposes of constitutional review. (28)

   3. Missouri's Informed Consent Statute

      Many states have abortion-specific informed consent laws, but Missouri's statute presents one of the most stringent requirements in the country because it requires the physician to disclose a statement that many find controversial. (29) Missouri's informed consent statute requires that doctors present the patient seeking the abortion with certain written information contained in a booklet. (30) Some of the information required to be in the booklet includes

      the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from conception to full term, including color photographs or images of the developing unborn child at two-week gestational increments. Such descriptions shall include information about brain and heart functions, the presence of external members and internal organs during the applicable stages of development and information on when the unborn child is viable. (31) Most notably, the booklet or printed material must "prominently display the following statement: 'The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being.'" (32) The statute does not include a definition for "life" or "human being" to give further clarity to the meaning of the mandated phrase. (33) However, the meaning of "conception" is understood as "the fertilization of the ovum of a female by a sperm of a male." (34) Additionally, the booklet acknowledges that Missouri law requires the information in the booklet be provided to patients seeking abortions. (35)

      While the statute does not define all terms in the phrase, the Missouri General Assembly attempted to further legitimize this statement. In 1986, the General Assembly enacted a statutory preamble, which stated that "[t]hc life of each human being begins at conception." (36) Shortly after becoming effective in 1988, the United States Supreme Court heard a constitutional...