I SAW THE SIGN: NIFLA V. BECERRA AND INFORMED CONSENT TO ABORTION

In 2018, the Supreme Court held in National Institute of Family & Life Advocates v. Becerra (NIFLA) that requiring a crisis pregnancy center to place a sign in its waiting room alerting people to available abortion services elsewhere violated the First Amendment. Abortion providers are often faced with similar requirements—but the Court’s cursory treatment of the First Amendment in Planned Parenthood of Southeastern Pennsylvania v. Casey left their rights in flux for decades. Commentators lamented that the Court saw fit to protect a crisis pregnancy center from state-written compelled speech but left abortion providers without the same constitutional protections. This Note argues that, far from exempting abortion providers from its holding, NIFLA in fact provides the first Supreme Court guidance since Casey for interpreting state informed consent statutes that implicate the speech of abortion providers. The reasoning of NIFLA compels the conclusion that “pure speech” for the crisis pregnancy center must be “pure speech” for the abortion provider.

This Note proceeds in three parts. Part I provides an overview of the law of compelled speech, abortion jurisprudence, and how these two disparate areas of the law have converged in the courts prior to NIFLA. Part II argues that NIFLA should force lower courts to reckon with what constitutes “conduct” in the abortion context and what must constitute “pure speech.” Part III uses NIFLA’s language to develop a framework to assess whether a restriction regulates conduct or speech in the abortion context and demonstrates how such a framework could be applied to ubiquitous informed consent restrictions passed in states across the country.

The full text of this note may be found by clicking the PDF link to the left.

* J.D. Candidate 2020, Columbia Law School. The author would like to thank Vincent Blasi, Carol Sanger, and the staff of the Columbia Law Review for their thoughtful feedback and editorial assistance.

Introduction

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. 1 Kan. Stat. Ann. § 65-6709(k) (West 2019). In California, a similar law was passed mandating signs in the waiting rooms of crisis pregnancy centers (CPCs). 2 Care Net, a chain of CPCs, states that it “provide[s] compassionate support to women and men faced with difficult pregnancy decisions” and offers services like free pregnancy tests, limited ultrasounds, and “[p]regnancy decision coaching by trained advocates.” What Is a Pregnancy Center?, Care Net, https://www.care-net.org/what-is-a-pregnancy-center [https://perma.cc/A87V-CY9T] (last visited Nov. 4, 2018). 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. 3 Cal. Health & Safety Code § 123472(a)(1) (2018); Nat’l Inst. of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361, 2368–69 (2018). Unlicensed clinics were required to add an addendum: “This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” Cal. Health & Safety Code § 123472(b)(1); NIFLA, 138 S. Ct. at 2369–70. Alternatively, clinics could satisfy the statute’s requirement by dispensing a printed or digital notice. Cal. Health & Safety Code § 123472(a)(2).

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. 4 NIFLA, 138 S. Ct. at 2370. 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. 5 Kan. Stat. Ann. § 65-6709. The statute reads that “consent to an abortion is voluntary and informed only if” the abortion provider abides by a series of rigorous disclosure requirements, many with multiple subrequirements, including a twenty-four-hour waiting period, various state-written pamphlets, state-written language on the clinic’s website, and the aforementioned sign. Id. 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. 6 See NIFLA, 138 S. Ct. at 2373–74. Conversely, statutes like the FACT Act, “regulat[ing] speech as speech,” are subject to strict scrutiny. 7 Id. at 2374. Applying such divergent standards to such similar regulations is not trivial: In most cases, a statute that receives rational basis scrutiny is constitutional; 8 Cf. Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans, 32 Ind. L. Rev. 357, 357 (1999) (finding that in twenty-five years, the Court accepted only ten rational basis claims under the Equal Protection Clause but rejected 100 of them, for a success rate of ten percent). a statute that receives strict scrutiny is not. 9 Compare Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972) (coining the now-famous adage that strict scrutiny is “‘strict’ in theory and fatal in fact”), with Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 795–96 (2006) (finding from an empirical study of applications of strict scrutiny in the federal courts that statutes survive such challenges thirty percent of the time).

In states across the country, abortion providers are required to speak state-written scripts, 10 See, e.g., Ind. Code § 16-34-2-1.1 (2019) (requiring abortion providers to inform their patients that “human physical life begins when a human ovum is fertilized by a human sperm”; that a fetus can feel pain at or before twenty weeks of gestation; and that an ultrasound is available to enable the woman to view her fetus). hand out pamphlets, 11 See, e.g., Kan. Stat. Ann. §§ 65-6709(b)(1)–(2), 65-6710 (West 2019) (prescribing that physicians must tell their patients that “abortion terminates the life of a whole, separate, unique, living human being” and provide state-written materials giving information on child support, adoption services, gestational ages of the fetus, fetal pain, and the fetal heartbeat). perform and describe ultrasounds, 12 See, e.g., Wis. Stat. § 253.10(3g)(a) (2019) (compelling the abortion provider to perform an ultrasound on the pregnant patient in order to obtain informed consent, while describing the images on the screen, including the developing organs and the fetal heartbeat). provide mandated counseling, 13 See, e.g., La. Stat. Ann. § 40:1061.17(B) (2019) (requiring that a woman be counselled about her abortion at least twenty-four hours before it may take place, necessitating at least two trips to the clinic and, if the patient has travelled to visit the clinic, an overnight stay). mandate waiting periods, 14 See, e.g., Mo. Ann. Stat. § 188.039 (West 2019) (instituting a seventy-two-hour waiting period between counseling and an abortion except in medical emergencies). and put up signs, 15 See, e.g., Kan. Stat. Ann. § 65-6709(k). all in the service of ensuring the patient’s informed consent to abortion. 16 See, e.g., Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. Ill. L. Rev. 939, 941 (“The obvious objective of [South Dakota’s informed consent statute] is to use the concept of ‘informed consent’ to eliminate abortions.”); see also Jennifer M. Keighley, Physician Speech and Mandatory Ultrasound Laws: The First Amendment’s Limit on Compelled Ideological Speech, 34 Cardozo L. Rev. 2347, 2348 n.2 (2013) (“I refer to ‘informed consent’ in quotes throughout this Article . . . since [laws termed as such] fall outside of the ordinary understanding of what information is necessary in order for a patient to give informed consent to a medical procedure.”). One might think that many of these laws infringe on the provider’s freedom to speak without government interference 17 See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). —or perhaps even the patient’s right to refuse to listen 18 See Caroline Mala Corbin, The First Amendment Right Against Compelled Listening, 89 B.U. L. Rev. 939, 996–1007 (2009) [hereinafter Corbin, Compelled Listening]; see also Helen Norton, Pregnancy and the First Amendment, 87 Fordham L. Rev. 2417, 2429 (2019) (arguing that applying the First Amendment fairly to CPCs and abortion providers alike requires “tak[ing] women’s interests as listeners seriously”). —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. 19 505 U.S. 833 (1992). In Casey, the Court relegated its First Amendment consideration of an informed consent provision to three sentences, 20 Id. at 884. For a more thorough discussion of the Court’s First Amendment aside in Casey, see infra notes 66–71 and accompanying text. 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. 21 See Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574–75 (5th Cir. 2012) (“The plurality response to the compelled speech claim [in Casey] is clearly not a strict scrutiny analysis. It inquires into neither compelling interests nor narrow tailoring. The three sentences with which the Court disposed of the First Amendment claims are, if anything, the antithesis of strict scrutiny.”); Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 733–35 (8th Cir. 2008) (en banc) (holding that informed consent requirements may only be invalidated as a violation of the physician’s right not to speak if they are “either untruthful, misleading or not relevant to the patient’s decision to have an abortion”). But see Stuart v. Camnitz, 774 F.3d 238, 246 (4th Cir. 2014) (striking down a mandatory ultrasound requirement similar to that in Lakey because requiring a physician to show their patient that particular image in the context of an abortion is “quintessential compelled speech [as] [i]t forces physicians to say things they otherwise would not say”). For a full discussion of Rounds and Stuart, see infra section I.C. 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. 22 Nat’l Inst. of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361, 2373–74 (2018). 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.