The last few years have seen an increasing number of States seek to regulate abortion procedures—from heart auscultation statutes to admitting privileges to minimum facility standards. One such regulation has involved “speech-and-display” statutes, which require physicians to conduct an ultrasound, display the sonogram images to a woman considering an abortion, and describe the anatomical features that are visible in the image. In addition to asserting traditional due process claims, physicians have challenged these ultrasound requirements on First Amendment grounds, arguing that speech-and-display laws compel physicians to engage in speech activity against their will and (sometimes) against their medical judgment.
Although Casey considered and rejected a physician’s First Amendment speech challenge to a Pennsylvania informed consent provision, the plurality did so in one relatively short paragraph. The federal courts, therefore, have struggled to determine the proper standard to apply to compelled disclosures related to the practice of medicine. The Fifth Circuit, applying a form of rational basis review, upheld Texas’s speech-and-display law, while the federal District Court for the Middle District of North Carolina struck down North Carolina’s speech-and-display statute under strict scrutiny.
This Article contends that, under the Supreme Court’s First Amendment speech precedents, the context in which the compelled disclosures occur determines the proper level of scrutiny. To the extent that the government seeks to regulate speech on matters of public concern—which, as Connick v. Myers notes, “occupies the highest rung of the hierarchy of First Amendment values”—strict scrutiny applies. But if the government attempts to regulate speech on private matters, including the speech between professionals and their clients, then a lower standard applies. In particular, Casey and Zauderer instruct that, although compelled disclosures “implicate” a physician’s First Amendment rights, where the government has a special interest in regulating the given activity and does not limit public discussion generally, compelled disclosures are subject only to rational basis review. Thus, given that (i) the State has a special interest in regulating the medical profession and (ii) speech-and-display laws require physicians to provide truthful information about the gestational age and anatomical features of the fetus but do not limit their ability to comment (privately or publicly) about their views on abortion, such laws are subject to—and should survive—rational basis review.
Available at: http://works.bepress.com/scott_gaylord/8/