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:
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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