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Physician Speech and Mandatory Ultrasound Laws: The First Amendment’s Limit on Compelled Ideological Speech

49 Pages Posted: 30 Jul 2012 Last revised: 25 Aug 2012

Jennifer M. Keighley

Yale Law School

Date Written: July 29, 2012

Abstract

Since Planned Parenthood v. Casey opened the door to more pervasive forms of regulation of the abortion procedure, states have increasingly used their regulatory power to coerce physician speech. The Supreme Court has not yet explained, however, whether and how physicians’ First Amendment rights limit such attempts to coerce state-mandated speech. This Article argues that while the precise contours of physicians’ First Amendment rights have yet to be articulated, physicians certainly retain the core First Amendment right to refuse to speak the state’s ideological messages. I then evaluate whether mandatory ultrasound laws, which require a physician to perform an ultrasound exam and to then display and describe its results to any woman seeking an abortion, impermissibly require physicians to engage in the state’s ideological advocacy. Analyzing the mandatory ultrasound law in Texas, I conclude that the law commandeers physicians into spreading, in their own voice, the state’s value-laden message that pregnancies should be carried to term, and that the law consequently should be subject to strict scrutiny.

Keywords: First Amendment, reproductive rights

Suggested Citation

Keighley, Jennifer M., Physician Speech and Mandatory Ultrasound Laws: The First Amendment’s Limit on Compelled Ideological Speech (July 29, 2012). Available at SSRN: https://ssrn.com/abstract=2119568 or http://dx.doi.org/10.2139/ssrn.2119568

Jennifer Keighley (Contact Author)

Yale Law School ( email )

New Haven, CT 06520
United States

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