JURIST Guest Columnist Mary Ziegler of Saint Louis University School of Law says that the increasing popularity of state regulations requiring doctors to perform ostensibly informative procedures prior to an abortion represent a revision of Supreme Court precedent which may result in changes to First Amendment and abortion rights...
URIST has recently reported on the latest developments in the expansion of women's right to know laws. On February 2, the Senate of Virginia approved
what could become the twenty-fourth state law requiring that women seeking an abortion view an ultrasound or be told of the opportunity to do so. On February 7, Judge Sam Sparks of the US District Court for the Western District of Texas granted
the State of Texas's motion for summary judgment in Texas Physicians Providing Abortion Services v. Lakey
. As I recently explained
in JURIST, Lakey
involves a Texas ultrasound law that is among the most restrictive in the nation. For example, unless they fit within one of several narrow statutory exceptions, women in Texas must view an ultrasound image before they can have an abortion. In many other "right to know states," by contrast, abortion providers have only to inform women of the availability of ultrasound technologies. Confronted with a challenge to the constitutionality of the act, the district court had previously granted a preliminary injunction, suspending enforcement of the law. In a recent (and sweeping) opinion, the US Court of Appeals for the Fifth Circuit vacated
the injunction. This week, the district court rejected a challenge to the constitutionality of the Texas law in granting summary judgment to the state.
To say that the district court in Lakey reluctantly rejected constitutional challenges to Texas's Right to Know Act, however, would be an understatement. Judge Sparks expressed serious doubts about the Fifth Circuit's reasoning, particularly its interpretation of relevant Supreme Court precedents. The district court's opinion echoed a number of other recent decisions, including Stuart v. Huff, from the US District Court for the Middle District of North Carolina, and Planned Parenthood of Minnesota, North Dakota, and South Dakota v. Daugaard, from the US District Court for the District of South Dakota.
Lakey figures prominently in an intensifying battle about what the Supreme Court meant when it talked about informed consent. In 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court refused to overturn Roe v. Wade but upheld an informed consent law. The Pennsylvania law at issue in Casey required abortion providers to inform women of "the nature of the procedure, the attendant health risks and those of childbirth, and the probable gestational age of the fetus." Casey framed this information as furthering a potential interest in the "psychological well-being" of the woman who "may elect an abortion, only to discover later, with truly devastating consequences, that her decision was not truly informed." Casey also addressed the physician's First Amendment rights, if only in passing. The Court explained that the right not to speak was "implicated, but only as part of the practice of medicine."
What should be made of this language? Abortion opponents are betting that Casey has paved the way for a dramatic expansion of informed consent restrictions. Some antiabortion leaders read Casey as defining speech differently in the abortion context than in many others. As reflected in the Fifth Circuit's opinion, abortion opponents suggest that when providers speak to a patient about abortion they are not really speaking at all. Instead, they are providing medical care. If this is the case, abortion opponents suggest, providers cannot invoke the First Amendment when they are compelled to speak. When does speech become "medical care?" When the subject is abortion? When the setting is a clinic, hospital or doctor's office? When the state regulates a practice or speech act as medical? "Right to know" laws bring these constitutional questions into play.
For better or for worse, "right to know laws" carve out a broader role for courts and legislatures to decide what passes for science in the battle about abortion. Does the state's understanding of fetal development count as a fact or an opinion? Is the state's perspective political and ideological? Is the state instead a privileged participant in the provision of medical care, allowed significant leeway, as Casey states, "in regulating the medical profession?" Framed in this way, "right to know" laws go to the very heart of the question of who makes medical decisions and who dictates which information is substantially true or scientifically valid.
Finally, "right to know" laws invite the Supreme Court to narrow abortion rights by eliminating any interest providers have in the abortion decision. As the district court observed, the Fifth Circuit seemed to suggest that, "within the abortion context, the doctor's right to speak, or not to speak, is wholly dependent on the contours of a woman's right to an abortion." Underlying the Fifth Circuit's decision was an assumption that providers do not have freestanding First Amendment rights, at least in the abortion context. Abortion opponents promoting laws defunding Planned Parenthood have made similar claims in court, suggesting that the Fourteenth Amendment right to choose an abortion belongs exclusively to the woman. In this view, Casey recognizes only a right to seek an abortion, not any constitutional interest in providing one.
The "right to know" movement promises not just to change the legal landscape in many states. "Right to know laws" also seem to be headed for the Supreme Court, and decisions on these provisions might reshape the law on abortion and the First Amendment. These developments cannot, however, be viewed without a certain amount of irony. After the decision of Roe v. Wade, a wide variety of scholars, from Catherine MacKinnon to Ruth Bader Ginsburg, criticized the Court for framing abortion as a right belonging to physicians and patients rather than as one related to women's constitutional interest in equality. Abortion opponents, by contrast, criticized the Court for acting, as Judge Byron White put it, like an "ex officio medical board with powers to approve or disapprove medical practices ... throughout the United States."
Now, it seems, the roles have been reversed. Abortion opponents invite the courts to determine what should count as medical practice or truthful medical information. And if antiabortion leaders have their way, the idea that the abortion rights belong only to women will limit, rather than expand, the availability of abortion.
Mary Ziegler is an Assistant Professor of Law at Saint Louis University School of Law. Her publications include articles on the same-sex marriage debate, reproductive rights and the history of the American eugenic legal reform movement. Prior to her position at Saint Louis University, she served as the Oscar M. Ruebhausen Fellow in Law at Yale Law School, and as a clerk for Justice John Dooley of the Vermont Supreme Court.
Suggested citation: Mary Ziegler, Understanding Lakey: Abortion Rights and the Right to Know, JURIST - Forum, Feb. 11, 2012, http://jurist.org/forum/2012/02/mary-ziegler-informed-consent-ii.php.
This article was prepared for publication by Caleb Pittman, an assistant editor of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org