Abortion and Compelled Physician Speech

Abstract

As states increasingly impose informed consent mandates on abortion providers, the required disclosures bring two well-established legal doctrines into conflict — the First Amendment’s freedom of speech and the physician’s duty to obtain informed consent.On one hand, the First Amendment provides for a broad freedom of speech, under which government may neither prevent people from voicing their own views, nor compel individuals to voice the government’s views. As the Supreme Court observed in Wooley v. Maynard, the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” When legislatures tell physicians what they must disclose to their patients, the physicians lose their right not to speak.