As states increasingly impose informed consent mandates on abortion providers, the required disclosures bring two well-established legal doctrines into conflict — the First Amendment’s freedom of speech and the physician’s duty to obtain informed consent.

On one hand, the First Amendment provides for a broad freedom of speech, under which government may neither prevent people from voicing their own views, nor compel individuals to voice the government’s views. As the Supreme Court observed in Wooley v. Maynard, the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” When legislatures tell physicians what they must disclose to their patients, the physicians lose their right not to speak.

The regulation of medicine has long been recognized as within the state’s police powers. Yet when the state regulates physicians’ professional speech, it potentially raises First Amendment concerns. Nowhere is this truer than in the abortion context, where state legislatures have attempted to influence women’s reproductive decisions with informed consent requirements. Although the Supreme Court, in Planned Parenthood of Se. Pa. v. Casey, found a mandated disclosure provision constitutional some 20 years ago, it offered little to clarify the scope and reach of the First Amendment issues that arise with abortion informed consent laws.

Since Casey was decided, legislatures have enacted a range of informed consent laws that impose even more stringent abortion informed consent regulations than the provisions at issue in Casey.

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.”

Shifting laws and regulations increasingly displace the centrality of women’s needs in the provision of abortion services. Lawmakers and judges contribute to this environment in two ways: by protecting the right of “Crisis Pregnancy Centers” (CPCs) to give false and misleading information about abortion and by supporting legislation mandating that abortion providers give misleading and unnecessary information for the purposes of informed consent. Litigation on informed consent is further complicated through the mobilization of facts — such as the gestational age or sonogram of the fetus — delivered with the intent to dissuade women from accessing abortion. In other words, factual information utilized for ideological purpose.

First Amendment litigation has done little to help prioritize women’s access to appropriate information about abortion that is calibrated to their needs.

Recent cases about the constitutionality of compelled speech in the reproductive health care context contain an irony that is difficult to ignore. Whereas courts tend to be highly permissive when considering governmentally-mandated speech by physicians to patients seeking abortions, they have often been more skeptical of disclosure requirements imposed on crisis pregnancy centers (CPCs), which are nonmedical centers whose entire mission is to dissuade women from choosing abortion, and which have at least in some cases utilized deceptive techniques to accomplish that goal. In other words, it appears that non-physicians seeking to keep women from seeking a legal form of medical treatment have greater First Amendment protections than physicians who care directly for those women and who are generally entrusted by the state to exercise professional judgment.

State law efforts to regulate abortions have accelerated. Between 2011 and 2013, state legislatures enacted 205 abortion laws — 16 more than in the entire decade before. Most laws take direct aim at surgical abortions, although some also target chemical abortions that use drugs like RU-486, a common chemical abortifacient sold under the trade name Mifeprex.

A crop of new state laws focus on the subject of this Symposium, that is, what information abortion providers must give women about the procedures or drugs they seek. In the most controversial iteration of these “informed consent” statutes, abortion providers must “perform an ultrasound on each wom[a]n seeking an abortion and…show and describe the image” (the “speech and display provisions”). Some state laws regulating chemical abortions also force particular disclosures to women when receiving such drugs.

There was a moment in the 2012 campaign, when Mitt Romney attempted to “pivot” to the center and get away from the statements of those like Todd Akin who made comments about how in cases of “legitimate rape,” the victims’ bodies “have ways to try and shut that whole thing down.” The way Romney did it was to make clear that while he was against abortion, he would, of course, make an exception for women who had been raped or whose pregnancy was the result of incest. This has become something of a moderate orthodoxy to those who oppose abortion. Abortion should be criminalized, yes, but with these exceptions carved out. This shibboleth has found its way not only in the public position taken by many Pro-Life politicians, but also in legislation across several U.S. states, and even the Hyde Amendment, which prohibits federal funding for abortion, makes an exception for these kinds of abortions

In early 2013, the Indian Central Drugs Standard Control Organisation, under supervision of the Health Secretary, introduced new rules governing the conduct of clinical trials involving human participants. Among other provisions, the rules require that sponsors of research compensate participants who are injured during the course of their research participation. The rules presumably were drafted to protect citizens from harm caused by biomedical research without unduly restricting access to the benefits that research can provide. While requiring compensation for injury is widely-acknowledged as a critical component of ensuring ethical conduct of human subjects research, in this case the legal restrictions do not match the ethical justifications that support a compensation requirement. To see this, it is important to examine the context in which the rules were written, the justifications for rules of this type, and what mechanisms are available to bring the effects of the rules into alignment with the norms their passage sought to promote.

Research that recruits and surveys participants online is increasing, but is subject to fraud whereby study respondents — whether eligible or ineligible — participate multiple times. Online Internet research can provide investigators with large sample sizes and is cost efficient. Internet-based research also provides distance between the researchers and participants, allowing the participant to remain confidential and/or anonymous, and thus to respond to questions freely and honestly without worrying about the stigma associated with their answers. However, increasing and recurring instances of fraudulent activity among subjects raise challenges for researchers and Institutional Review Boards (IRBs). The distance from participants, and the potential anonymity and convenience of online research allow for individuals to participate easily more than once, skewing results and the overall quality of the data.

In spring 2013 the American College of Medical Genetics and Genomics (ACMG) Working Group on Incidental Findings in Clinical Exome and Genome Sequencing (hereafter “Working Group”) released a report of “Recommendations for Reporting of Incidental Findings in Clinical Exome and Genome Sequencing,” the culmination of a three-year long consensus project. The Working Group recommended that a number of incidental findings, which they define as “the results of a deliberate search for pathogenic or likely pathogenic alterations in genes that are not apparently relevant to a diagnostic indication for which the sequencing test was ordered,” be returned to clinicians (and patients) independent of patient preferences. The Working Group recognized that their recommendations may violate existing ethical norms, but believe this is justified by a fiduciary duty on the part of clinicians and laboratory personnel to prevent harm by warning patients about certain findings, a duty they claim “supersedes concerns about autonomy.”

More than a decade ago, Solomon Benatar and Peter Singer argued that “a new, proactive research ethics…must ultimately be concerned with reducing inequities in global health and achieving justice in health research and health care.” Towards this objective, a limited amount of recent scholarship has started to consider whether a theoretical basis exists for the position that international research should help promote global health equity and, if so, what the implications are for its conduct. Theories of justice from political philosophy establish obligations for parties in high-income countries to improve the health of parties in low- and middle-income countries (LMICs). These theories have been shown to provide grounds for the claim that international research should be conducted to advance justice in global health. What this means for research actors from high-income countries is the focus of a recently proposed ethical framework: “research for health justice.”

Language matters. Thus when market language is imposed on the health care system, it seems natural to transform patients into consumers, and patient rights into consumer rights. But patients are not consumers who pick and choose among physicians and treatments on the basis of price and quality. Patients are sick and vulnerable people who are truly not themselves and are incapable of shopping around for the best deal.

Discussions surrounding patient engagement and empowerment often appear to use the terms “patient” and “consumer” interchangeably. But do the two terms hold the same meaning, or is a “patient” a passive actor in the health care arena and a “consumer” an informed, rational decision-maker? Has there been a shift in our usage of the two terms that aligns with the increasing commercialization of health care in the U.S.