Casey and a Woman's Right to Know: Ultrasounds, Informed Consent, and the First Amendment

Abstract

Twenty years after Planned Parenthood of Southeastern Pennsylvania v. Casey was decided, courts across the country are being called on to apply the Court’s undue burden test to novel abortion regulations. The most recent wave of regulation involves the use of ultrasound technology. Twenty-two States currently require physicians to perform, offer to perform, or follow specific protocols when performing an ultrasound prior to any abortion procedure. National attention, however, has focused on the growing number of States that require physicians to display and describe the ultrasound images to a woman seeking an abortion. Three States — Texas, North Carolina, and Oklahoma — have already passed such legislation, and several other States currently are considering similar bills. The ultrasound statutes in Texas, North Carolina, and Oklahoma were immediately challenged in the state and federal courts. Instead of focusing on the woman’s Fourteenth Amendment due process rights, the central issue in the federal cases has been whether physicians have a First Amendment right to be free from compelled disclosures relating to the ultrasounds. The federal courts have struggled with how to resolve these First Amendment claims within the abortion context. While the Fifth Circuit Court of Appeals upheld the Texas speech-and-display statute, state and federal courts enjoined similar statutes in Oklahoma and North Carolina.This article explores the split between and among the courts that have addressed the First Amendment challenges to these mandatory speech-and-display regulations. In particular, the article evaluates how Casey’s undue burden test affects the First Amendment speech rights of physicians in the abortion context. Drawing on Casey’s references to Wooley v. Maynard and Whalen v. Roe, the article concludes that the government has broad authority to mandate disclosures designed to inform a woman’s decision about an abortion. Under Casey, mandatory speech-and-display requirements that do not impose a substantial obstacle to a woman’s exercise of her right to abortion are constitutional if they are reasonable, which Casey defines as being truthful, nonmisleading, and relevant. As a result, the article contends that courts should uphold the Texas, North Carolina, and Oklahoma ultrasound statutes — as well as the similar statutes being considered by state legislatures across the country — against First Amendment challenges of physicians.