Sex, Lies, and Ultrasound
33 Pages Posted: 7 Jun 2018
Date Written: May 22, 2018
State-mandated falsehoods are rampant in the context of abortion regulation. State legislatures have required doctors, before performing abortions, to provide scientifically unsupported information to women, such as that having an abortion increases the risk of breast cancer, or that it has negative mental health effects. Given the lack of evidence to sustain these sorts of claims, it seems reasonable to refer to such statements as government-mandated lies. However, this article argues that government mandated lies in the abortion context are unique in several ways that make them unlikely to be found unconstitutional, despite the fact that they obviously hinder patients’ interest in access to information and to a constitutionally-protected procedure. Ultimately, this article concludes that the primary harm from governmental lies in the abortion context is a form of expressive injury. Analogizing to the harm caused by violations of the Establishment Clause or by racist speech, I argue that under the revised framework established by the Supreme Court in the 2016 case Whole Woman’s Health v. Hellerstedt, such expressive harms can and should be recognized as imposing an unconstitutional undue burden on the abortion right.
Keywords: Constitutional Law, impelled speech, government speech,Scientifically supported / unsupported expressions, expressive harm, Abortion, First Amendment, Fourteenth Amendment, undue burden, Whole Woman's Health v. Hellerstedt
JEL Classification: K10
Suggested Citation: Suggested Citation