Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Anything Goes: Compelled Physician Speech in the Eighth Circuit
|
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
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |