Things were different, however, when antiabortion advocates last year challenged a California law requiring crisis pregnancy centers — established, the law said, specifically to dissuade women from having abortions — to post truthful information about the limits of their services and the availability of state-sponsored family-planning services. The Supreme Court viewed that law as an impermissible form of forced speech and held, 5 to 4, that it violated the First Amendment.
In the California case, NIFLA v. Becerra, Justice Clarence Thomas wrote that California could not coerce speech from the activists who run and work at the antiabortion centers. The majority held that the law “impose[d] a government-scripted, speaker-based disclosure requirement” in violation of the First Amendment.
Kentucky’s antiabortion law, which will now go into effect, does almost precisely the same thing. It forces medical service providers to engage in coerced speech — in this case, making and then playing a recording of a fetal heartbeat. How can it be that California’s statute violated the First Amendment, whereas Kentucky’s does not?
Under First Amendment legal precedents, licensed medical professionals in many states must comply with “informed consent” laws that are overtly political and utterly without any valid medical basis. Such laws are designed not to inform a woman about the bona fide medical risks and benefits of abortion, but rather to persuade her not to undergo the procedure. Worse still, these state laws receive extremely deferential judicial review: The federal courts hold them to be constitutional if they are merely seen as “reasonable.”
By allowing the Kentucky law to stand, the Supreme Court gives a green light to more legislatures to impose onerous “informed consent” regulations designed to shame and deter women seeking access to abortion. Like previous Supreme Court decisions — such as Rust v. Sullivan, which upheld government-coerced speech in family-planning clinics, and Planned Parenthood v. Casey, which upheld a Pennsylvania law requiring physicians who provide abortion services to distribute state-authored tracts opposing abortion — it renders medical professionals little more than government sock puppets. Although a medical professional may say the words, hand over the tract or play the fetal heartbeat recording, it’s actually the government that is designing the message and compelling its distribution.
Meanwhile, at crisis pregnancy centers throughout the nation, antiabortion organizations are not prohibited from creating the (false) impression that these ersatz family-planning clinics are staffed by medical professionals. To be sure, some professionals do work in them — but most staff members are antiabortion activists who lack formal medical training and licensure. And it is precisely because most crisis pregnancy center staff are not medical professionals that they are not subject to informed-consent requirements. The terrible irony, then, is that an activist wearing a white lab coat and a stethoscope to meet with a “patient” has a much broader right to freedom of speech than an actual medical doctor does.
Something is deeply wrong with this picture. If California cannot require crisis pregnancy centers to provide truthful, non-misleading information about the actual scope of their services, or about the availability of state-provided family-planning services, then Kentucky should not be permitted to turn doctors and nurses into government mouthpieces required to deliver pro-life messages on pain of losing their licenses.
This raises a broader issue about freedom of speech. The notion that First Amendment rights in the United States have never been more robust is true in some areas. For example, the Supreme Court has invalidated laws that sought to impose gag rules on lawyers or to force speech requirements on faculty members at the nation’s public colleges and universities. In other words, lawyers and university professors enjoy a First Amendment right to engage in professional speech free and clear of the heavy hand of the state.
But this is emphatically not so for the nation’s physicians and nurses. A licensed medical professional should enjoy a First Amendment right to communicate directly, accurately and truthfully with her patients about the risks and benefits of a medical procedure (including an abortion).
When state “informed consent” laws — including Kentucky’s — go beyond strictly factual requirements that directly relate to the medical risks and benefits of a procedure, they cease to be medical regulations and become viewpoint-based speech regulations. If Kentucky’s state government wants to inveigh against abortion, using taxpayer dollars for this purpose, it is certainly free to speak. However, Kentucky should not be equally free to use the state’s doctors and nurses as involuntary surrogates for antiabortion messages that they would prefer not to deliver.