Balkinization  

Tuesday, July 31, 2012

Anything Goes: Compelled Physician Speech in the Eighth Circuit

Guest Blogger

Jennifer Keighley

Last week’s en banc decision from the Eighth Circuit on South Dakota’s requirement that physicians inform women seeking abortions that they will be at an “increased risk of suicide ideation and suicide,” in the face of medical evidence demonstrating that there is no causal relationship between abortion and suicide, suggests that the Eighth Circuit believes there is virtually no limit on the state’s power to coerce physician speech in connection with an abortion procedure. Under Planned Parenthood v. Casey, state laws that require the giving of truthful, non-misleading, and relevant information do not impose an undue burden on the abortion right, and under the Eighth Circuit’s prior precedents, such laws also do not interfere with physicians’ First Amendment rights. Even though the en banc majority conceded that there was no evidence showing that abortion causes an increased risk of suicide, the majority concluded that the compelled statement was truthful, non-misleading and relevant. The majority found evidence of causation to be unnecessary as long as some studies show that women who abort have a higher rate of suicide than “women in other relevant groups, such as women who give birth or do not become pregnant.” The fact that other underlying characteristics, such as pre-existing mental health difficulties, shared by women who abort might be the actual cause of the increased rate of suicide and that women who are not pregnant are an improper group for comparison was of no import. Instead, the majority concluded that the term “increased risk” merely required a correlation between abortion and higher rates of suicide and that as long as a causal link between abortion and suicide remains a theoretic possibility, the Casey standard was not violated.

The en banc decision is remarkable for a number of reasons. First, there is the stark ideological cohesiveness of the judges voting to uphold the statute. Of the seven judges who voted to uphold, six were nominated by President George W. Bush. The only judge appointed by another president who voted to uphold the statute was Judge Loken, who was appointed by President George H.W. Bush, and whose brief concurrence expressed his strong reservations about the statute. In contrast, while two of the dissenters were nominated by President Clinton, including the dissent’s author, Judge Murphy, the first and only woman to have ever served on the Eighth Circuit, the remaining two members of the dissent were appointed by H.W. Bush and President Reagan, respectively. Thus, while judges appointed by Presidents of both parties joined the dissent, those voting to uphold express a single ideological outlook.

This stark ideological cohesiveness is nothing new—the en banc court’s 2008 decision on an earlier challenge to the South Dakota law broke down along the exact same lines. All six W. Bush appointees joined the majority opinion, again written by Judge Gruender, upholding the statute’s requirement that physicians inform women “that the abortion will terminate the life of a whole, separate, unique, living human being.” The majority concluded that the statute did not require physicians to engage in any untruthful or ideological speech because the statute separately defined “human being” as “an individual living member of the species of Homo sapiens ... during [its] embryonic [or] fetal age.” Judge Murphy’s dissenting opinion in the 2008 decision, which concluded that the statute impermissibly required physicians “to espouse theological or philosophical beliefs,” was joined by the same three judges who joined last week’s dissent. Both the 2008 decision and this latest decision demonstrate that, at least according to the W. Bush appointees on the Eighth Circuit, compelled physician speech raises little, if any, constitutional questions when this speech is in the context of an abortion procedure.

It is worth considering how the majority’s analysis would have differed if they had engaged in a separate analysis of physicians’ First Amendment rights, rather than collapsing this inquiry with the Casey undue burden standard. Physicians’ ability to transfer expert medical knowledge and advice to their patients is severely compromised by state regulations that require physicians to engage in speech that (1) is not supported by the medical literature, (2) goes against the physicians’ best medical judgment, and (3) undermines patients’ trust in their physicians. The suicide advisory-risk does precisely that—it requires physicians to advise their patients of a risk that is not supported by the weight of medical evidence, and that will undoubtedly confuse and mislead their patients. While physician speech may be more extensively regulated by the state because it is within the context of medical practice, state regulations that require physicians to give their patients information that interferes with the communicative relationship between physicians and their patients implicate physicians’ First Amendment rights. I am currently writing an Article on compelled physician speech that outlines this argument, and that deals more specifically with the First Amendment issues raised by mandatory ultrasound laws. While both the Eighth and Fifth Circuits have concluded that the undue burden standard is the only applicable constitutional standard in the abortion context, even when physicians’ First Amendment rights are implicated, my Article argues that Casey does not support this conclusion, and that a separate constitutional inquiry is warranted.

Turning to the majority opinion, its conclusion that the compelled statement does not require any reliable evidence of causation is untenable given the statute’s text. The statute requires physicians to provide women with a written statement providing “[a] description of all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including . . . [i]ncreased risk of suicide ideation and suicide.” Even putting aside the dispute over whether the phrase “to which the woman would be subjected” applies to the earlier phrase “medical risks of the procedure,” the statute still suggests a causal relationship. An increased risk of suicide is allegedly a “known medical risk of the procedure.” But if the abortion does not cause women to have an increased risk of suicide or suicide ideation, then it is not a known risk of the procedure—to the extent there is a correlation between abortion and higher suicide rates, women who have abortions were likely already in a group with a higher risk of suicide before they made the decision whether to terminate the pregnancy.

In addition, given that the state has compelled this statement as part of the “informed consent” process, the majority’s conclusion that the statement does not require any evidence of causation makes absolutely no sense. When getting a patient’s informed consent, a physician discloses information that a patient should consider in deciding whether to undergo the procedure—again, if having the abortion has no effect on a woman’s risk of suicide, there is no reason why this information would be relevant to getting the woman’s informed consent whether to terminate. While the majority decides that the term “increased risk” does not require evidence of causation because the medical literature sometimes uses the term “increased risk” to refer to the relative risk of an adverse outcome in one group as compared to another group, this conclusion also completely ignores how women will interpret the information about their “increased risk” for suicide, especially when given this information in the context of informed consent. This willingness to ignore the patient’s perspective, however, is a logical extension of the en banc court’s 2008 decision, which completely overlooked how women would interpret the statement that they were terminating the life of a whole, separate, unique, human being, even if the statute separately defined “human being” in biological terms. For the en banc majority, construing the South Dakota statute based on definitions that go against common understanding is par for the course.

There is much more to discuss about the majority opinion, including its dubious reading of the scientific and medical literature, and its willingness to rely substantially on the declaration of an expert, Dr. Priscilla Coleman, whose research methodology in this field has been strongly criticized. The dissent summarizes this nicely in stating that “a woman's ability to make a wise, mature, and informed choice is hindered by being told that the increased risk of suicide is a ‘known medical risk[]’ ‘to which . . . [she] would be subjected’ by having an abortion when the weight of the medical research indicates the opposite and she is not informed of the debate.” Given the Eighth Circuit’s interpretation of Casey’s requirement that the information be truthful, non-misleading, and relevant, getting the courts to engage in a separate inquiry into the First Amendment rights of physicians might be the only way to limit attempts to structure the ‘informed consent’ dialogue to serve the state’s anti-abortion agenda.

Jennifer Keighley is a resident fellow at the Program for the Study of Reproductive Justice at Yale’s Information Society Project. You can reach her by e-mail at jennifer.keighley at gmail.com


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