Washington Law Review

Comment

Sonograms and Speech: Informed Consent, Professional Speech, and Physicians' First Amendment Rights

January 01, 2021 | 95 Wash. L. Rev. 2027

Abstract

Abortion is an extremely divisive topic that has caused waves of litigation. The right to access abortion has traditionally been challenged based on due process, equal protection, and privacy grounds. However, in a more recent string of cases, physicians have been challenging laws that require the physician to narrate an ultrasound before an abortion as an abridgment of their First Amendment rights. These cases require courts to balance the government’s ability to reasonably regulate a physician through professional licensing with the physician’s First Amendment protections against government-compelled speech. This Comment argues that, to balance these ideals and survive First Amendment scrutiny, mandatory ultrasound laws must include exceptions for therapeutic privilege and patient waiver. These exceptions, grounded in the established medical practice of informed consent, apply when certain information would be more harmful than beneficial to a patient. Statutes that do not include these exceptions accordingly do not comport with First Amendment protections against compelled speech.

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