In Kansas, any clinic that provides abortion services must place a sign where every patient can see it. It must read, in three-quarter-inch, boldfaced type, that a woman cannot be forced to have an abortion; that she may change her mind at any time; that the father must provide child support; that if she decides against having an abortion, the state can help finance the costs of childbirth; and that state agencies are available to assist with the process.
In California, a similar law was passed mandating signs in the waiting rooms of crisis pregnancy centers (CPCs).
They read, in pertinent part:
California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.
In June 2018, the Supreme Court struck down the latter signage law, the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, as an unconstitutional infringement on the First Amendment rights of crisis pregnancy centers.
Kansas differentiates its signage law from the California statute by requiring the sign as a precursor to a patient’s voluntary and informed consent to abortion.
Under National Institute of Family & Life Advocates v. Becerra (NIFLA), the Kansas statute would be subject to the rational basis review that accompanies a state-imposed informed consent requirement to a medical procedure, because, as the argument goes, the statute regulates conduct and only incidentally burdens speech.
Conversely, statutes like the FACT Act, “regulat[ing] speech as speech,” are subject to strict scrutiny.
Applying such divergent standards to such similar regulations is not trivial: In most cases, a statute that receives rational basis scrutiny is constitutional;
a statute that receives strict scrutiny is not.
In states across the country, abortion providers are required to speak state-written scripts,
hand out pamphlets,
perform and describe ultrasounds,
provide mandated counseling,
mandate waiting periods,
and put up signs,
all in the service of ensuring the patient’s informed consent to abortion.
One might think that many of these laws infringe on the provider’s freedom to speak without government interference
—or perhaps even the patient’s right to refuse to listen
—but the medical context, and particularly the abortion context, is special.
Many potential First Amendment challenges to abortion restrictions were foreclosed by Planned Parenthood of Southeastern Pennsylvania v. Casey, the case that laid the foundation for modern abortion jurisprudence.
In Casey, the Court relegated its First Amendment consideration of an informed consent provision to three sentences,
and many circuits have taken that light assessment to mean that First Amendment principles do not apply in full force to abortion providers, at least when seeking their patients’ informed consent.
The complication now, of course, is that those First Amendment principles do apply in full force to a crisis pregnancy center mandated to speak state-sponsored words via a sign in its waiting room, and the NIFLA Court did not conclusively establish where a statute like the FACT Act ends and where informed consent begins.
Can such a wide First Amendment chasm exist between the waiting room and the examination room, between the crisis pregnancy center and the abortion provider, between Kansas and California?
This Note argues that NIFLA requires courts to develop a framework to determine whether an informed consent statute violates the First Amendment rights of abortion providers. Part I reexamines the compelled speech doctrine, the Court’s abortion jurisprudence, and the notoriously muddy history of First Amendment doctrine as applied to abortion providers. Part II demonstrates that the analysis in NIFLA lends support to full First Amendment protections for doctors in consultation with their patients, and the informed consent exception, as it was applied in NIFLA, should serve as a basis for defining informed consent for First Amendment purposes in future cases involving abortion providers. Part III proposes a framework based on NIFLA for how courts should assess informed consent statutes, in order to determine whether the speech should be accorded full First Amendment protections under NIFLA, or may properly be defined as an informed consent requirement.