The Right to Remain Silent: First Amendment Rights of Physicians in States with Narrated Ultrasound Laws

Photo by Edward Cisneros on Unsplash

Sabrina Jemail, Associate Member, University of Cincinnati Law Review

This article was originally published in Volume 89, Issue 4 of the University of Cincinnati Law Review. Click here to read the article in full.

I. Introduction

Is it truly possible to teach an old dog new tricks? More specifically, what if the old dog is the federal judiciary and the new trick is a different constitutional provision with which to contest state abortion laws? For decades, federal courts across the country have grappled with questions surrounding state abortion regulations, deciphering the constitutionality of the state’s involvement in such deeply personal, private decisions.[1] The traditional arguments come from the Fourteenth Amendment Due Process Clause’s rights for patients.[2] But recently enacted state abortion laws target the doctors performing these medical procedures rather than the patients seeking them.[3] These laws require that doctors must perform a narrated ultrasound on the pregnant woman before performing an abortion.[4] Specifically, Kentucky, North Carolina, and Texas all require the patient to hear an explanation of the ultrasound, even if she decides to avert her eyes of the sonogram images.[5] They each also characterize the description of the fetus as a “medical description” that includes the size of the embryo, presence of cardiac activity, and location and existence of limbs and internal organs.[6] As a result, the nature of the legal arguments challenging these laws has shifted. Lately, doctors are challenging the constitutionality of these state laws in federal court as violations of the First Amendment’s free speech protections because the laws impose verbal requirements on the doctors.[7] While the Fifth and Sixth Circuits have upheld such laws as merely informed consent laws regulating a medical procedure, the Fourth Circuit has taken the opposite position and struck down such laws in violation of the doctors’ constitutionally-protected free speech.[8]

Part II of this Note provides an overview of the judicial history surrounding abortion regulations, including the Supreme Court’s opinion upholding informed consent laws that require risk and health disclosures before abortion procedures. Part II also discusses the split between the Fifth and Sixth Circuits and the Fourth Circuit. Part III of this Note examines the propriety of analogizing mandatory narrated ultrasound laws to informed consent laws and determines which circuit opinion is a proper interpretation of First Amendment free speech protections. Finally, Part IV argues in favor of the Fourth Circuit’s line of reasoning and discusses the implications of this legal direction.

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[1] See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[2] See, e.g., Roe, 410 U.S. 113; Casey, 505 U.S. 833; U.S. Const. amend. XIV.

[3] See, e.g.,Ultrasound Informed Consent Act, Ky. Rev. Stat. Ann. § 311.727 (West 2017); N.C. Gen. Stat. § 90-21.85 (West 2011); Act Relating to Informed Consent to an Abortion, Tex. Health & Safety Code Ann. § 177.0122 (West 2011).

[4] See, e.g.,Ky. Rev. Stat. Ann. § 311.727; N.C. Gen. Stat. § 90-21.85; Tex. Health & Safety Code Ann. § 177.0122.

[5] See, e.g.,Ky. Rev. Stat. Ann. § 311.727; N.C. Gen. Stat. § 90-21.85; Tex. Health & Safety Code Ann. § 177.0122.

[6] See, e.g., Ky. Rev. Stat. Ann. § 311.727; N.C. Gen. Stat. § 90-21.85; Tex. Health & Safety Code Ann. § 177.0122.

[7] See, e.g.,Nat’l Ins. Fam. & Life Adv.  v. Becerra,138 S. Ct. 2361 (2018); EMW Women’s Surgical Ctr. P.S.C. v. Beshear, 920 F.3d 421 (6th Cir. 2018); Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012); Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014).

[8] See, e.g., Becerra,138 S. Ct. 2361; EMW Women’s Surgical Ctr. P.S.C., 920 F.3d 421; Tex. Med. Providers Performing Abortion Servs., 667 F.3d 570; Stuart, 774 F.3d 238.