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A Matter of Context: Casey and the Constitutionality of Compelled Physician Speech

Published online by Cambridge University Press:  01 January 2021

Scott W. Gaylord
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The First Amendment states that “Congress shall make no law…abridging the freedom of speech.” Given the myriad ways in which freedom of speech can be implicated, the United States Supreme Court has not adopted a single standard for reviewing First Amendment speech claims. With respect to compelled speech, the Court has instructed that “context” is dispositive. When the government attempts to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein,” the Court applies strict scrutiny. When, however, “the State has a significant role to play in regulating” a particular context, government-compelled disclosures may be subject to a lower standard of review: “When a state regulation implicates First Amendment rights, the court must balance those interests against the State’s legitimate interest in regulating the activity in question.”

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 43 , Issue 1 , Spring 2015 , pp. 35 - 50
Copyright
Copyright © American Society of Law, Medicine and Ethics 2015

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References

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See United States v. Windsor, 133 S. Ct. 2675, 2717 (2013) (noting that “in rational basis cases…‘the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be presumed.”’).Google Scholar
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Although the Fifth Circuit Court of Appeals has adopted a similar interpretation, some commentators disagree. See, e.g., Sawicki, N. M., “Compelling Images: The Constitutionality of Emotionally Persuasive Health Campaigns,” Maryland Law Review 73 (2014): 458–522Google Scholar
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Stuart, 992 F. Supp.2d at 609. Under North Carolina's speech-and-display legislation, a physician must show the ultrasound image to the woman and to describe the image. Contrary to the district court's suggestion, the statute does not require that “a physician attempt to persuade a woman not to have abortion.” Physicians may counsel a woman to have an abortion or not depending on the physician's assessment of what is in the patient's best medical interests.Google Scholar
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