AuthorHarris, Kimberley


Three (2) women (3) wait for their initial appointment at an abortion clinic. (4)

Ashley is a nineteen-year-old college freshman. She never expected to be here. Two and a half months ago, she attended a fraternity party with her roommate. Like everyone else at the party, she was drinking. She remembers flirting with a senior she thought was cute, but that is the last thing she remembers from that night. Ashley is still not sure if she drank too much or if someone slipped a date-rape drug into her drink, but she is sure that she woke up in an unknown bed, that her underwear was missing, and that she was bruised and sore. She knew she had sex that night, but she did not know with whom. She did not tell anyone; she was embarrassed. Her parents had always warned her about drinking too much around guys, and she had been to her college's sexual assault prevention training. Ashley felt stupid and ashamed and believed that she should not have let this happen to her.(5) She felt that she could not report the incident since she did not even know who assaulted her or if she had drunkenly consented. Also, she did not want her friends to see her as a victim. So, she kept it a secret.(6) She retreated from her previously active social life since she did not want this to happen again and told her friends that she had to study and was trying to improve her grades. But instead, she was sitting alone in her dorm room blaming herself for what had happened. Then, she missed her period twice. Scared, she bought a home pregnancy test and it confirmed her worst fear--she was pregnant. She knew it had to be from the night of her rape because she had not had sex since. Apprehensively, she made an appointment at an abortion clinic, hoping no one would recognize her. She waits, alone and nervous.

Hannah is fourteen, in eighth grade, and is an incest survivor.(7) For two years, her uncle has been sexually molesting her. It started when Uncle Frank lost his job and moved into her parents' home three years ago. In exchange for free rent, Frank was supposed to watch Hannah and her brothers after school. Frank told Hannah she was his favorite of all his nieces and nephews. He complimented her on her maturity and told her she was pretty. At first, Hannah was flattered by his attention. She told him of her troubles with middle school bullies and how she wished that boys would like her the way they liked the more popular girls. Frank told Hannah that her schoolmates did not see the real her, but that he saw how special she was.(8) Hannah did not realize she was being groomed by a sexual predator. The sexual abuse started with kisses and touches, but it quickly progressed to intercourse. Hannah never told anyone; it was her secret. Her parents were busy, and even though Hannah knew on some level that her relationship with Frank was wrong, she liked that someone thought she was pretty and worthwhile. But she also felt deeply guilty about the sexual contact since her parents and her church had always emphasized that you should wait until marriage. She never would have told anyone, but then she missed her period and worried that she might be pregnant. In tears, she told her mother about the years of sexual abuse.(9) Her parents plan to file charges against Frank, but today, Hannah is their primary concern. They worry about the years of psychological healing ahead and hope that she will be able to overcome the abuse and trauma she has suffered. After her mother took Hannah to her gynecologist, they learned that Hannah was indeed pregnant. Although her parents describe themselves as generally pro-life, they could not imagine subjecting their teenage daughter to an unwanted pregnancy that was the result of incest. So, Hannah, who would much rather be at soccer practice, waits at the abortion clinic, sandwiched between both of her parents.

Jennifer is thirty-six. For years she has been trying to start a family with her husband. After two miscarriages, Jennifer finally became pregnant with her "rainbow baby."(10) She and her husband were overjoyed and began decorating the spare bedroom that would become the baby's nursery. They spent thousands of dollars on baby clothes, strollers, a car seat, and a crib. But at her twenty-week ultrasound, Jennifer got devastating news. The nurse practitioner performing the ultrasound took longer than expected, and then she got quiet and had to go get the specialist. The specialist sat down and gently told Jennifer and her husband that their baby had developed without kidneys. The baby's lungs needed functioning kidneys to produce the amniotic fluid it would use to learn how to breathe. This was a non-viable pregnancy; there was no chance of survival.(11) The doctor continued and told Jennifer that there was a chance she could carry the baby to term; however, it would either die during labor or suffocate shortly after birth. Faced with these awful choices, Jennifer and her husband together decided to abort their child.(12) Jennifer's gynecologist told her that she did not perform abortions and referred her to the abortion clinic. Jennifer's husband, who came with her, holds her hand as they wait to see the doctor.

In some states, these women would be allowed to have their abortions without interference from the government.(13) However, in other states, these women, and any other woman seeking an induced abortion, would be subject to significant state interference.(14) This interference includes laws that compel speech from abortion providers by requiring mandatory verbal counseling,(15) the distribution of false and misleading written materials developed by the state health agency,(16) and ultrasounds during which an abortion provider must display and describe images of the fetus.(17) Despite the prevalence of these burdensome laws regulating pre-abortion consultations,(18) abortion remains a common medical procedure.(19)

These laws regulating pre-abortion consultations are often controversial, and circuit courts have reached different conclusions on their constitutionality. For example, two U.S. circuit courts have upheld laws requiring narrated ultrasounds against First Amendment challenges: the Fifth Circuit in Texas Medical Providers Performing Abortion Services v. Lakey(20) and the Sixth Circuit in EMW Women's Surgical Center, P.S.C. v. Beshear.(21) In contrast, in Stuart v. Camnitz(22) the Fourth Circuit invalidated North Carolina's law requiring abortion providers "to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions."(23) The Supreme Court has declined to hear the issue by denying certiorari in EMW Women's Surgical Center, P.S.C. v. Meier.(24) Clearly, the circuit courts are not in agreement over how to analyze these laws compelling speech from abortion providers--do they use the undue burden standard from Planned Parenthood of Southeastern Pennsylvania v. Casey(25) or should they employ a First Amendment analysis?

These laws regulating pre-abortion consultations, often justified as informed consent,(26) are not true informed consent; they are an unconstitutional infringement on the free speech rights of abortion providers. Since requirements that abortion providers perform mandatory narrated ultrasounds, distribute ideologically-tinged material written by the state health agency, and convey legislatively-mandated information in pre-abortion counseling sessions compel speech from abortion providers, these laws should be analyzed based on First Amendment jurisprudence and subjected to heightened scrutiny. In National Institute of Family and Life Advocates v. Becerra(27) (hereinafter NIFLA), a California law requiring disclosures from crisis pregnancy centers was subjected to heightened scrutiny and analyzed according to First Amendment precedents, not the lower standard for informed consent provisions described in Casey.(28) The Court's decision in NIFLA underscores the issues with compelled speech in the abortion context.(29) The compelled speech present in laws requiring speech from abortion providers is just as ideological as the speech at issue in NIFLA was, if not more so. As these laws are not intended to give women needed medical information, they are not truly requiring informed consent; instead, their purpose is to persuade women to not have abortions.

In this Article, Part I describes the current status of laws compelling speech from abortion providers, including laws requiring mandatory distribution of state-created written materials, mandatory counseling sessions in which medical providers must convey certain legislatively-required information verbally and in writing, and mandatory performance of narrated ultrasounds on women seeking abortions, including the circuit court split over the constitutionality of this requirement. Part II details the constitutional background involved in laws compelling speech from abortion providers, including abortion jurisprudence, specifically the undue burden standard for abortion restrictions announced in Casey. It then analyzes current First Amendment jurisprudence and commentary regarding compelled speech, commercial and professional speech, and informed consent, including the Court's recent decision in NIFLA. Finally, Part III argues that laws compelling speech from abortion providers violate the First Amendment and should be subject to a heightened scrutiny analysis as ideological speech under NIFLA and not the undue burden standard of informed consent laws under Casey.


    Blocked by the Supreme Court's holdings in Roe v. Wade and Casey from enforcing blanket prohibitions on abortion,(30) anti-abortion advocates have turned to a variety of measures to restrict access to abortions, including protesting abortion clinics,(31) focusing on "fetal personhood,"(32) applying strict licensing requirements for abortion providers (targeted regulation of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT