Informed Consent as Compelled Professional Speech: Fictions, Facts, and Open Questions
37 Pages Posted: 27 Sep 2015 Last revised: 16 Sep 2017
Date Written: September 25, 2015
This Article’s purpose is to clarify the boundaries of physicians’ First Amendment rights when communicating with patients. More specifically, this Article seeks to identify the most doctrinally consistent reading of Supreme Court free speech jurisprudence to understand what limits the First Amendment’s protection against compelled speech imposes in the context of state informed consent mandates. While the primary context in which this question has arisen is that of abortion-specific informed consent mandates, this inquiry has broader implications for informed consent law as a whole. If the First Amendment imposes substantial limits on the type of physician speech that states can compel, then every state informed consent law – from the most benign to the most controversial – is potentially at risk. This Article’s point-by-point explanation of the facts, fictions, and open questions relating to this issue will provide readers with an accessible guide to First Amendment doctrine in the context of compelled physician speech.
Note: SSRN version posted is a pre-publication draft.
Keywords: First Amendment, compelled speech, informed consent, abortion, professional speech, physician speech
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