an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The profound challenge of protecting reproductive rights in a era of Bush judiciary is exemplified by the recent en banc decision of the 8th Circuit in Planned Parenthoods v. Rounds, 530 F.3d 724 (8th Cir. 2008).
At issue in Rounds was a South Dakota statute prohibiting abortions performed in the absence of “informed consent” and defining informed consent as requiring a physician to inform her patients “that the abortion will terminate the life of a whole, separate, unique, living human being.” The statute further provides that the physician must certify “certify in writing” that the woman has received this “information” and “that the physician believes she understands the information imparted.” The statute defines “human being” as “an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation.” A physician who violates the Act knowingly or in reckless disregard is guilty of a Class 2 misdemeanor. A federal district court below, as well as a panel of the Eighth Circuit, had struck down this provision of the statute because it compelled physicians to mouth the ideological beliefs of the South Dakota legislature, and so violated their First Amendment rights against compelled speech. I have in print argued that this is the correct constitutional analysis. See Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 ILL. L. REV. 939 (2007). But the Eighth Circuit, sitting en banc, reached an opposite conclusion. Of the seven judges who joined Raymond W. Gruender’s majority opinion, six were appointed by George W. Bush, and one by the elder President Bush. Of the four dissenters, two were appointed by Clinton, one by Reagan, and one by George W. Bush.
Gruender argued that “our role is to examine the disclosure actually mandated,” which was to be determined by “statutory definitions.” Because it was obviously true that an abortion will terminate a “member of the species of Homo sapiens,” the statute merely required the disclosure of truthful, nonmisleading information. Gruender concluded that “the Act, when read in light of the nonmisleading statutory definition of ‘human being,’ does not require a physician to address whether the embryo or fetus is a ‘whole, separate, unique’ ‘human life’ in the metaphysical sense.” And physicians do not possess a First Amendment immunity from the compelled disclosure of “truthful and non-misleading information as part of obtaining informed consent to a procedure.”
This reasoning is so greasy and so specious that it strongly suggests the new Bush judiciary will stop at literally nothing in their effort to approve every pious effort incrementally to ban abortion. Put aside the glaring fact that on Greunder’s interpretation the statute is senseless, for Greunder seems to imagine that the purpose of the statute is to assure women seeking abortions that they are indeed carrying the fetus of a Homo sapiens rather than that of a bat or of a raccoon. The important point is that Gruender’s argument rests on the frightening premise that a person’s First Amendment right against compelled speech—a right that stems from the venerable case of West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)— depends entirely on what the government says that it is making a person say and not at all on what the government is actually making a person say. This premise would undermine all First Amendment protections against state compelled speech.
Imagine, for example, that the South Dakota statute required doctors to inform pregnant women that they were terminating the “soul of their babies” and that the statute defined “soul” as “the human DNA of a Homo sapiens.” Gruender’s argument would apparently require us to analyze the statute as simply mandating the communication of truthful and nonmisleading information. Gruender apparently believes that the meaning of what the state requires a person to say is to be determined by the very government that is mandating a person to speak. That is Orwellian. It denudes the First Amendment of independent significance. If South Dakota passes a statute requiring Gruender to affirm that the “holy trinity” exists, and if the statute defines the “holy trinity” as the three atoms making up water molecules, Greunder would seemingly have no cause for complaint.
The implications of Gruender’s opinion are breathtaking. Statutory definitions control the meaning of statutes, which is to say that they control what those who are obligated to obey statutes must and must not do. But statutory definitions do not and cannot control the meaning of what statutes require persons to say. In virtually every legal context, the meaning of a person’s words are determined by reference to how they are understood by a reasonable auditor. Think in this context of the law of defamation or the law of the Lanham Act.
Thus if the First Amendment prohibits the state from requiring persons to speak certain meanings, but permits the state to require persons to speak other meanings (see Robert Post, Compelled Subsidization of Speech: Johanns v. Livestock Marketing Association, 2005 SUPREME COURT REVIEW 195), the question of what meanings the state is actually requiring a person to communicate is to be determined by the meaning of the required words, not by statutory definitions self-servingly promulgated by the state itself. The only way that the law has ever known to determine the meaning of words is by reference to the judgment of a reasonably competent audience.
I should have thought these points elementary and obvious. That George W. Bush’s Eighth Circuit should so thoughtlessly abandon them suggests either deep professional incompetence or a pitch of ideological fervor that leads them simply not to care. I suspect it is the latter, which is why I predict that we are in for very rough weather on the question of reproductive rights. Posted
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