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Wednesday, August 01, 2012

Another Round of Rounds

The litigation in Planned Parenthood Minnesota, North Dakota, and South Dakota v. Rounds has been fascinating for students of compelled speech, unconstitutional conditions doctrine, and the institutional turn in the First Amendment. I just turned in my edits on page proofs for my forthcoming book, First Amendment Institutions (out in November! Makes a lovely Thanksgiving present!), and it features in chapter 10 in my discussion of professional speech and First Amendment institutionalism. Of course, just as I did so the Eighth Circuit issued a new en banc opinion that won't make it into the book. (It also features heavily in this article by Robert Post.) The new opinion, like prior opinions of the Eighth Circuit in this case, is misguided, in my view.

The underlying statute is a South Dakota law that requires physicians to make a variety of statements to patients for the purposes of obtaining their informed consent for an abortion. They include:

* That the abortion will terminate the life of a whole, separate, unique, living human being;

* A description of all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including:

(i) Depression and related psychological distress;

(ii) Increased risk of suicide ideation and suicide;

Planned Parenthood sued, claiming both a violation of the undue burden test and a violation of the First Amendment rights of doctors and patients. Prior decisions, especially in the Eighth Circuit, have upheld most of the requirements. The latest round concerned the law's requirement that physicians inform patients that abortions present a risk of "increased risk of suicide ideation and suicide." In upholding that requirement, the majority of the divided en banc court relied heavily on the statement in Planned Parenthood v. Casey that requiring the provision of accurate, nonmisleading information to patients does not present an undue burden, as well as Casey's statement that abortion laws, like other medical procedures, implicate "the physician's First Amendment rights not to speak," but "only as part of the practice of medicine, subject to reasonable licensing and regulation by the State." Quoting an earlier round of Rounds, it said: "Thus, with respect to First Amendment concerns, 'while the State cannot compel an individual simply to speak the State's ideological message, it can use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient's decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion.'" It concluded that the medical evidence supported the conclusion that the required statement was accurate and nonmisleading. 
Jennifer Keighly has a post on the new opinion at Balkinization. I suspect her interest is more in reproductive rights per se than free speech per se (she is a fellow at a program on reproductive justice), although I may be wrong. In any event, I agree with her that the court erred by collapsing the First Amendment inquiry so thoroughly into the Casey undue burden analysis and relying too heavily on the statement from Casey about the reasonable licensing and regulation of medicine by the state. I wish the Eighth Circuit had given stronger consideration to Legal Services Corporation v. Velazquez, and its statement that the government cannot seek to control an existing medium of speech in a way that distorts its functioning. The regulatory power of the state with respect to medicine and particularly professional speech by physicians is, in my view, not absolute; it is a kind of mutual delegation of authority between medical professionals and the state in which the profession relies on some of the state's coercive power but ought to retain the right to maintain its own standards and its own view of what constitutes sound professional speech even in the face of state regulation. In some ways, I think that is even more true of medical speech than of medical conduct. Doctors should not be made to read scripts written by the state, even where the state believes that information to be true, where the best practices of the profession suggest that such a speech should not be read.
I do not blame the Eighth Circuit entirely. As I write in my book, the court cannot be faulted simply for following the doctrine; but we can and should fault the doctrine itself. Still, and regardless of the abortion controversy itself, I think this is an unfortunate decision and that institutionalists, whatever their views on abortion, should agree with this conclusion.  

Posted by Paul Horwitz on August 1, 2012 at 10:44 AM in Paul Horwitz | Permalink


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Hi Paul -- I like to think that I'm one of your fellow-institutionalists, and I'm sensitive to the likelihood that my disagreement with the dissent, and with Jennifer Keighly's post, is at least in part due to my sense that (as you suggest) they reflect the abortion-rights-related objections of abortion-rights supporters to all policies that have, as their purpose and / or effect, a closer regulation of abortion, just as my own (for the most part) agreement with the majority reflects my view that the state should regulate abortion more closely. But, I'd welcome hearing more from you about the statement (from Velasquez) that you said *you* wanted to hear more about from the CTA8, i.e., that "the government cannot seek to control an existing medium of speech in a way that distorts its functioning." What, for instance, is the "baseline" to use when looking for "distortion", and what separates worrisome from distortion from permissible (even welcome) regulation?

I understand (and agree with, I think) the point that it's (often) not enough to say "requirements that doctors make relevant and true statements to their patients are permissible," because I'm sure there are lots of situations in which doctors believe, reasonably and out of concern for patients' welfare, that their patients should not hear all relevant and true statements. But, I assume we do think that *some* requirements that professionals make relevant and true statements are permissible, and I'm just not sure how the "don't distort the medium" rule will help us to avoid the implications of the fact that our community disagrees strongly, and is not going to stop disagreeing, about abortion.

Your mention of the speech / conduct distinction grabbed my attention, too, because at the same time we are seeing decisions like Rounds, we are hearing calls from some that physicians and other medical personnel, as such, should be required to *do* certain things (including, perhaps, some abortions). Does being required to read a script, to which one objects, distort a "medium" than being required to do an act, to which one objects?

Posted by: Rick Garnett | Aug 7, 2012 10:45:52 AM

Sorry -- the last sentence of the first graf of my previous comment should be: "What, for instance, is the "baseline" to use when looking for "distortion", and what separates worrisome distortion from permissible (even welcome) regulation?"

Posted by: Rick Garnett | Aug 7, 2012 10:46:56 AM

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