Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech
Robert Post | 2007 U. Ill. L. Rev. 939
Although most are familiar with South Dakota’s recently repealed abortion ban, few are aware that South Dakota previously enacted an informed consent statute that prohibits physicians from performing abortions without first obtaining the voluntary and informed written consent of the pregnant woman seeking an abortion. The law is most unusual, because it provides that an abortion may be performed only after a physician informs a patient that she is terminating the life of “a whole, separate, unique, living human being,” and only after a physician informs a patient that abortion may cause a significant risk of psychological trauma, a risk that accepted medical knowledge does not believe exists.
This lecture analyzes the First Amendment principles that should apply to compelled physician speech of this kind. It argues that although the state may freely regulate physician speech as part of its regulation of the practice of medicine, First Amendment questions are raised by (at least) two forms of such regulation. The first is when the state requires physicians to engage in ideological speech. The second is when the state either requires physicians to communicate information that the medical profession regards as false, or prohibits physicians from communicating information that the medical profession regards as true. The lecture analyzes the First Amendment stakes in determining the constitutionality of such regulations, with particular attention to the necessity of pro-tecting structures of professional practice that define expert knowledge. The lecture argues that there is a First Amendment interest in protecting the integrity of physician-patient communications as a channel for the communication of accurate medical information.