An Abortion Miracle? Let’s Try the First Amendment

by Priscilla Smith

While watching the totally hip video of the Orthodox Reggae beat rapper Matisyahu’s song Miracle, I began to dream about miracles in what some refer to as the “abortion wars” in the United States.

What if we could have a reasoned discussion about what information a woman needs before making a decision about her reproductive life and her health, before choosing whether to obtain an abortion or carry to term, whether to raise a child or give her child up for adoption? What information do women need when choosing a Cesarean section, infertility treatments or surrogacy?

What are the fundamental principles that should guide government regulation of medical information in this context? Should women be informed? Of course. Should they be coerced into one option or another? Of course not.

Should the government be allowed to express its “opinion” on a woman’s medical choices? Should the principles that guide government regulation of medical information for reproductive choices be the same principles that guide government regulation of other information, like information about smoking or menu choices? Does the context in which the information is being provided matter? Is it ever appropriate for the government to regulate based on its views about the “proper” choices in these different contexts?

These are reasonable questions, but it would be miraculous to have a reasonable discussion about them publicly, much less for a reasonable discussion to result in rational legislative policy and meaningful access to objective medical information for women.

Where Are We?

In an insightful article on Salon, Irin Carmon described the current status of this domestic battle as a kind of unhappy stalemate with “the cementing of a consensus that neither side particularly likes”; that is, abortion remains legal, but becomes more and more difficult to obtain. While it was once seen as an act of liberation, a declaration of autonomy and equality, of control over one’s destiny, abortion is now portrayed more as a sign of failure, a last resort we are meant to be ashamed of.

This unhappy stalemate hardly means a truce has been declared. Instead, both sides continue to battle it out with neither side making much progress. Anti-abortion foes unleashed a flurry of legislative proposals, successfully enacting a record number of restrictions in 2011. Pro-choice advocates fought back in the courts, successfully challenging many of these restrictions, both those that force doctors to espouse anti-abortion ideology and give false information about the risks of abortion, as well as the attempts to cut funding for contraceptive services and prenatal care at Planned Parenthood.

Pro-choice advocates have a legislative strategy of their own which is designed to prevent the outright fraud and deception that has been documented at many so-called “crisis pregnancy centers.” You know the drill. These centers draw women into their offices with ambiguous ads offering pregnancy “counseling” for “problem” pregnancies, and medical services like ultrasounds. They then encourage the mistaken impression that they will assist women in obtaining abortions. Some places go so far as to lie to women about how far along they are in pregnancy, make fake abortion appointments, then cancel and reschedule again and again until it is too late for the woman to obtain an abortion.

We shut down one of these places back in 2005 when I worked at the Center for Reproductive Rights in the case, Choice Inc. of Texas v. William A. Graham, but advocates have been frustrated by how hard it has been to prevent the harm before it occurs. In response to documentation about fraudulent behavior at fake clinics, some cities have responded with regulations targeted at fraudulent advertising and at centers that give the mistaken impression that they are medical providers.

One considered strategy of pro-choice litigators has been to decline to challenge legislative bans on abortion after 22 weeks that were enacted this year in a few states — bans enacted based on claims that the fetus can feel pain before it is scientifically possible. Rather than challenging these statutes and focusing our attention on the idea of fetal pain, which is precisely what anti-abortion advocates hoped would happen, these statutes have been rendered mostly irrelevant by the scarcity of providers at these later points in the second trimester. This scarcity is itself a sad commentary about the availability of necessary care in the U.S.

Free Speech On The Front Burner

While all of this may sound familiar, something new is happening. The most contentious legal battles about abortion today are taking place within the unfamiliar terrain of the First Amendment on free speech.

Though we cannot be certain because of the changes in the court’s composition since the last Supreme Court decision on abortion, Gonzales v. Carhart in 2007, it is believed by most that a majority on the Supreme Court – Justices Breyer, Ginsburg, Kagan, Kennedy and Sotomayor — would protect a woman’s right to obtain an abortion as part of her constitutional right to liberty. In addition, it seems that four of the nine justices – Breyer, Ginsburg, Kagan and Sotomayor — would also recognize that the woman’s right is a right to “autonomy to determine her life’s course, and thus to enjoy equal citizenship stature,” as Justice Ginsburg wrote in her dissent in Gonzales v. Carhart..

However, now that legislatures have enacted information requirements that go beyond what was allowed in the 1992 Planned Parenthood v. Casey decision, the First Amendment is back on the scene with a vengeance. In Casey, the Supreme Court said that state abortion restrictions could stand unless they impose an “undue burden” on women. Requiring a woman to notify her husband about an abortion posed an undue burden and could not be allowed, the court said, but mandating that a woman listen to a lecture written by the state of Pennsylvania before obtaining an abortion did not pose an undue burden and would be permitted as long as the information was (1) truthful and not misleading, and (2) designed to “inform” and not hinder the woman’s choice. The court held that the First Amendment rights of the physician were “implicated” but not violated by the information requirements in that case. After Casey, the number of abortion restrictions ballooned.

In the last few years, anti-abortion advocates have been experimenting with increasingly onerous and ideological information requirements that go far beyond what the court allowed in Casey, bringing the First Amendment back into play. In new legal challenges, for example Stuart v. Huff in North Carolina and Texas Medical Providers Performing Abortion Services v. Lakey in Texas, advocates argue that the mandatory information statutes are forcing doctors to impart and their patients to listen to ideological messages, compelling speech that is unnecessary to an “informed” choice, in violation of the right to free speech. As the Supreme Court noted in Casey, the First Amendment allows some regulation of physician speech in the form of informed consent requirements. For most medical care, these informed consent requirements are regulated through use of malpractice litigation. These new abortion “information” requirements, the pro-choice advocates argue, do not qualify as medical “informed consent” and go too far.

At the same time, the “crisis-pregnancy” centers have challenged government regulations aimed at preventing fraud and deception as violating the free speech rights of their workers to discourage women from seeking abortion. They argue that the regulations requiring them to disclose that they are not abortion providers go too far.

It would make sense if the similarity of the free speech claims made by both sides in these two different contexts would result in a reasonable and coherent discussion about when governments can compel information sharing or compel disclosures, and when doing so goes too far.

The Catch: Differing Views on Women’s Role

In the reproductive rights arena, though, these discussions are informed not by ideas about free speech, but by notions about the nature of women’s knowledge and reasoning abilities, what it is to be a “woman,” and what equality requires.

For example, if one believes that women only truly fulfill their natural destiny if they become mothers, then it might make sense to require, as South Dakota did, that a doctor tells women that they are terminating their constitutionally protected relationship with their unborn child. If one believes women don’t know what they are doing when they are having an abortion, it might make sense to force, as North Carolina did, women to view an ultrasound before having an abortion.

We are at least two generations removed from these outmoded beliefs about women’s roles and decision-making capacity. Almost 20 years ago, the Supreme Court said in Planned Parenthood v. Casey that these beliefs had not been “consistent with our understanding of the family, the individual, or the Constitution” for a generation. Yet, they are still animating the decisions of some of our courts, like the January 10, 2012 decision by conservative Judge Edith Jones in Texas Medical Providers Performing Abortion Services v. Lakey, permitting a law to go into effect that requires women to view an ultrasound before obtaining an abortion, despite a lower court’s ruling to the contrary. From where I sit, people like my 11-year-old and her friends — let’s call them the Glee generation — will refuse a return to the past. But, we may have to wait until judges come from the Glee generation to have this discussion in the courts.

Or maybe it’s time for a miracle now.

Priscilla Smith is a Senior Research Scholar in Law in the Information Society Project at Yale Law School. Previously, she was a lawyer and the Director of the U.S. Legal Program at the Center for Reproductive Rights, during which time she argued Gonzales v. Carhart and Ferguson v. City of Charleston before the U.S. Supreme Court.

Also see: Privacy at Stake: Patients, Clinics and Electronic Medical Records by Corinne A. Carey in this edition of On The Issues Magazine

Also see: Before “Roe”: Legal Battles, Involuntary Servitude, My Mom by Justine Goodman in this edition of On The Issues Magazine

Read the Cafe for new and updated stories.