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Commentary: SCOTUS Could Soon Re-Examine Antiabortion-Rights Laws That Make 'Mockery' of Informed Consent

Commentary: SCOTUS Could Soon Re-Examine Antiabortion-Rights Laws That Make 'Mockery' of Informed Consent

May 29, 2015 —Summary of "Informed Consent and the First Amendment," Mariner/Annas, New England Journal of Medicine, April 2, 2015.

"For more than two decades, states have been adding to the things that physicians must say and do to obtain 'informed consent'" from women before an abortion, "thereby testing the constitutional limits of the states' power to regulate medical practice," write Wendy Mariner and George Annas from the Boston University School of Public Health's Department of Health Law, Bioethics and Human Rights.

They explain that the high court in 1992 "upheld states' authority to require physicians to provide truthful information that might encourage a woman to reconsider her decision to have an abortion, finding that such a requirement did not place an 'undue burden' on the woman." However, Mariner and Annas note that the 4th Circuit Court of Appeals' recent decision striking down a North Carolina law (SL 2011-405) provides "a potential vehicle for a new Supreme Court examination" of such requirements.

Background on N.C. Law

According to the authors, the North Carolina law "required physicians to 'perform an obstetric real-time view of the [fetus]' that the patient could see; to simultaneously explain the display ... and to offer the patient 'the opportunity to hear the fetal heart tone.'"

Further, while the law allowed a woman undergoing the ultrasound to "avert her eyes and cover her ears ... the physician was required to speak," Mariner and Annas write. They note that physicians who did not comply could be liable for damages and disciplinary action.

4th Circuit Decision

In its decision, the 4th Circuit rejected the state's claims "that the required fetal sonogram descriptions are merely statements of fact" and ruled that the law "violated the First Amendment's prohibition on state-compelled speech," the authors write.

Specifically, according to the authors, the court held that the "display provision represented 'quintessential compelled speech,' calling the required description 'ideological.'" The court ruled that because the provision's "'intent and ... anticipated effect'" was to discourage abortions, it essentially "compelled physicians to serve as a mouthpiece for the state's point of view."

The court also rejected the state's claims that "it was not compelling speech, but simply regulating conduct." According to Mariner and Annas, the court determined that while "'the information conveyed may be strictly factual ... the context surrounding the delivery of it promotes the viewpoint that the state wishes to encourage.'" Specifically, it held that the state in this context -- in which "a woman in a vulnerable position ... relies on her physician for objective medical information [and] must either listen to and watch the state's message or cover her eyes and ears" -- "'has ... moved from "encouraging" to lecturing.'"

Potential Effect of 4th Circuit Decision

The authors note that rulings on whether "laws like the North Carolina statute improve the informed consent process -- or distort it by commandeering physicians to act as agents of the state ... will affect not only abortion services but all medical practice." They explain that the Supreme Court has held that "'a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion is, for constitutional purposes, no different from a requirement that a doctor give certain specific information about any medical procedure.'"

According to the authors, the Supreme Court soon might take up the 4th Circuit decision, given how it "conflicts with other appellate court decisions." For example, they write that the 4th Circuit ruling represents a "radically different vie[w]" of such requirements than a ruling by the 11th U.S. Circuit Court of Appeals, which in July 2014 "upheld a Florida law forbidding physicians to ask patients about firearms in the home, finding that the prohibition did not violate physicians' First Amendment rights when the inquiry is 'unnecessary to a patient's care.'"

The authors argue that the 4th Circuit ruling represents "the traditional view that rational decision making and patient autonomy are best protected by allowing physicians to tailor disclosures to their patients' needs and preferences." Meanwhile, they contend that the 11th Circuit ruling represents "the view that government can use informed consent to encourage specific decisions by regulating what tests physicians must perform, what information they must present, and what information they cannot seek."

According to Mariner and Annas,"[l]aws prescribing exactly what physicians must say, regardless of patients' needs or preferences, make a mockery of informed consent and patient autonomy" and that laws "compel[ing] physicians to speak for the state devalue physicians' professional judgment and responsibility to act in patients' best interests."

"The First Amendment was adopted to keep the government from controlling what people, including physicians, say," they write, adding, "Protection of patients' rights should not be used as a pretext to promote partisan political purposes in the examining room."