The Constitutional Right to an Abortion Does Not Encompass the Right to Be Uninformed: the Fourth Circuit's Puzzling Approach to Evaluating Mandatory Ultrasound Provisions in Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014)

• Jurisdiction: United States,Federal
• Citation: Vol. 95
• Publication year: 2021

95 Nebraska L. Rev. 1124. The Constitutional Right to an Abortion Does Not Encompass the Right to Be Uninformed: The Fourth Circuit's Puzzling Approach to Evaluating Mandatory Ultrasound Provisions in Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014)

The Constitutional Right to an Abortion Does Not Encompass the Right to Be Uninformed: The Fourth Circuit's Puzzling Approach to Evaluating Mandatory Ultrasound Provisions in Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014)(fn*)

Lindsey Schmidt

TABLE OF CONTENTS

I. Introduction .......................................... 1125

II. Background ........................................... 1127
A. The History and Constitutionality of Informed Consent Statutes .................................. 1127
B. The First Amendment and Its Limitations- Legitimate Government Regulation of Speech ...... 1133
C. Professionals and First Amendment Protections--Or Lack Thereof ...................................... 1137
D. Speech and Display Cases-the Circuits' Attempt to Construe Roe, Casey, and the Professional Speech Doctrine Alluded to in Lowe ....................... 1140

III. Stuart v. Camnitz ..................................... 1142
A. Facts ............................................. 1142
B. The Fourth Circuit Weighs In ..................... 1143

IV. Analysis .............................................. 1144
A. The North Carolina Statute is a Permissible Exercise of State Police Powers Even Though It Implicates the First Amendment ................... 1145
B. The Fourth Circuit Inappropriately Ignores Its Own Professional Speech Doctrine ...................... 1149

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C. The Information Required Is Spoken in the Physician's Professional Context and Is Not Ideological Speech ................................. 1151
D. North Carolina's Ultrasound Provision Truthful, Non-Misleading, Non-Ideological, and Medically Necessary Information and Must be Upheld ........ 1156

V. Conclusion ............................................ 1158

I. INTRODUCTION

Imagine a scenario where a physician had a moral and religious objection to specific forms of birth control--namely the implantation of an intrauterine device (IUD). A patient, comes into the office to have a copper IUD (ParaGard)(fn1) inserted. State regulation requires the physician to provide truthful, non-misleading information with respect to the device. Accordingly, the physician must explain to the patient how ParaGard operates. In doing so, she explains that Paragard is implanted in the uterus where it produces an inflammatory reaction that is toxic to sperm--ultimately preventing fertilization.(fn2) Most notably, she must inform the patient that ParaGard "can be used for emergency contraception if inserted within five days [following] unprotected sex."(fn3)

But because of her moral and religious beliefs, the physician is particularly opposed to using ParaGard as emergency conception. It is her opinion that when used in that manner, ParaGard essentially causes an abortion. That is, ParaGard interferes with the development of a fertilized embryo.(fn4) Accordingly, the physician--and many other physicians sharing similar religious beliefs--choose not to inform patients that ParaGard can be used for emergency contraception.

In response, suppose the state legislature passes a statute requiring a physician to inform the patient of all relevant uses of ParaGard: including its use as emergency contraception. Following its enact-

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ment, the physician seeks to challenge the regulation, arguing the state is infringing on her First Amendment rights. To this end, she argues that that the state cannot force her to inform the patient of ParaGard's use as emergency contraception without improperly infringing on her First Amendment freedom of religion and freedom from compelled speech. And by doing do, the state is imparting its preference for access to this method of birth control on the physician. Indeed, the requirement would likely persuade some women to choose ParaGard over alternative forms of birth control that do not serve as emergency contraception--such as the pill. Indeed, the First Amendment is not without limitations, and accordingly, such a regulation cannot be seriously challenged under the First Amendment.(fn5)

There are certainly some scenarios where the First Amendment would attach to physician speech. For example, a state requirement compelling physicians to chant, "Donald Trump is the best President of all time" three times before each exam would certainly be unconstitutional. But state regulations requiring a physician to provide truthful, relevant information to a patient relevant to the patient's health cannot be outside the bounds of reason. In fact, it would seem morally wrong to deprive a patient of relevant, truthful information about her contraceptive health based on some broad notion of physician First Amendment protection.

But in the abortion context, such logic seems not to apply. Specifically, abortion providers consistently challenge state legislation requiring the physician to do, and say, certain things prior to the patient undergoing an abortion. To adequately understand why the debate continues with respect to physician First Amendment protections and abortion jurisprudence, one must first explore the confines of abortion regulation and informed consent.

Part II of this Note begins by exploring the history and constitutionality of informed consent statutes and discusses the bounds and limits surrounding informed consent legislation. Part III examines

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whether the First Amendment provides an additional hurdle for informed consent legislation to clear to be deemed constitutional. Specifically, this Part examines the protections--or lack thereof--afforded to physicians by the First Amendment. This Part also examines the reasoning behind the Fifth and Eighth Circuits' conclusion that informed consent provisions are legitimate forms of government regulation and must survive a rational-basis standard of review.(fn6) Part IV of this Note analyzes the facts, procedural history, and the holding in the Fourth Circuit's decision in Stuart v. Camnitz.(fn7) Part V addresses the inherent flaw in the reasoning applied by the Fourth Circuit and proposes instead that the court apply the rational-basis standard of review employed by the Fifth and Eighth Circuits. This Part suggests that by failing to adhere to the standard prescribed in Planned Parenthood of Southeastern Pennsylvania v. Casey(fn8) and applied by the Fifth and Eighth Circuits, the Fourth Circuit's declaration that mandatory ultrasound provisions are unacceptable forms of compelled, ideological speech consequently compromises the health and well-being of both mothers and unborn fetuses. Finally, the Note concludes by emphasizing that the court's failure to acknowledge that the First Amendment provides little protection to professionals exemplifies an erroneous rejection of the legitimate state interest in the regulation of the medical profession and medical procedures. In doing so, the Fourth Circuit's decision created conflict among the circuits and contravened the constitutional interests of women contemplating abortions and the unborn fetuses inside.

II. BACKGROUND

A. The History and Constitutionality of Informed Consent Statutes

It is well recognized that the Supreme Court has weighed in on the pro-life vs. pro-choice debate and emphatically declared a woman has a right to choose. In Roe v. Wade, the Supreme Court held the Fourteenth Amendment created a constitutional right to abortion.(fn9) The right to an abortion was confirmed in Doe v. Bolton, emphasizing the

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woman has the absolute right to choose.(fn10) While Roe proclaimed a woman has the right to an abortion, Roe also acknowledged the legitimate state interest in protecting the life and health of the woman as well as the fetus inside her.(fn11) The Roe Court concluded, however, that the state's ability to protect the fetus is not pertinent until the end of the first trimester when the fetus reaches viability.(fn12) Yet, even this alleged fetal protection was falsified in Doe as the Court widely defined the ability to circumvent the State's interest in protecting the fetus. Indeed, the Doe Court allowed for the termination of pregnancies throughout the final trimester if the physician determines carrying the fetus to term would negatively impact the physical or emotional well-being of the mother.(fn13)

While the decision in Roe was fundamental, it was not absolute.(fn14) And following Roe and Doe's robust declaration that a woman may abort the fetus at essentially any time during her pregnancy, states began implementing legislation to diminish the discretion given to physicians to perform abortions.(fn15) Such regulation became known in the abortion context as informed consent legislation.(fn16) On several oc-

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casions, the Supreme Court has considered the constitutionality of informed consent legislation. In Planned Parenthood of Central Missouri v. Danforth, the Supreme Court held the government could mandate written informed consent for abortions just as the government could require written informed consent to other medical procedures.(fn17) While Danforth recognized the ability of the government to require written consent to the procedure, whether the State could go beyond the traditional realm of written consent and demand women receive specific information prior to undergoing the procedure became a point of contention for the Court.(fn18)

Originally, courts rejected government attempts to broaden the scope of informed consent beyond written consent. In Akron(fn19) and Thornburgh v. American College of Obstetrics and Gynecologists,(fn20) the Supreme Court took the position that states could only demand written consent but could not regulate...