In Planned Parenthood of Southeastern Pennsylvania v. Casey,1 the Supreme Court rejected a First Amendment challenge to an abortion regulation with a discussion spanning just two sentences.2 Since then, lower courts have split over the reach of First Amendment protections in the medical context, particularly in cases having to do with abortion.3 In 2018, the Supreme Court finally weighed in again with National Institute of Family and Life Advocates v. Becerra4 (NIFLA), a decision that recognized First Amendment protections for clinicians at crisis pregnancy centers.5 Recently, however, in EMW Women’s Surgical Center, P.S.C. v. Beshear,6 the Sixth Circuit seemed to sidestep NIFLA when it upheld a Kentucky forced ultrasound, or “speech-and-display,” law against a First Amendment compelled speech challenge.7 In doing so, the court erroneously applied Casey’s Fourteenth Amendment holding to a First Amendment question, and failed to grapple with the Supreme Court’s newly clarified compelled speech framework. Instead, the decision appeared to confirm some commentators’ fears of an uneven application of the law for any case having to do with abortion.
The Kentucky General Assembly passed the Ultrasound Informed Consent Act,8 known as House Bill 2 (H.B. 2), in 2017.9
H.B. 2 requires doctors, as a precondition to obtaining a patient’s informed consent for abortion, to perform an ultrasound and “[p]rovide a simultaneous explanation of what the ultrasound is depicting,” display the ultrasound image for the patient, and make embryonic cardiac activity audible for the patient.10
EMW Women’s Surgical Center (EMW) — the only licensed abortion clinic in Kentucky — and the clinic’s three doctors brought suit in the District Court for the Western District of Kentucky against State Attorney General Andrew Beshear, Secretary of the Cabinet of Health and Family Services Vickie Yates Brown Glisson, and Executive Director of the Kentucky Board of Medical Licensure Michael Rodman.11 EMW argued that the new informed consent provisions violated the doctors’ First Amendment rights by compelling them to deliver the State’s ideological message on abortion.12 The parties filed cross-motions for summary judgment on the issue of H.B. 2’s constitutionality.13 Defendants Beshear and Rodman also filed motions for summary judgment, arguing that they were not proper defendants to the action because they lacked enforcement authority.14
The district court granted EMW’s motion for summary judgment, finding that H.B. 2 was unconstitutional, and found that the defendants were proper parties to the dispute.15 First, Judge Hale explained that H.B. 2 warranted heightened scrutiny, which it could not survive.16 Unlike the statute at issue in Casey, which merely compelled speech, H.B. 2 “compel[led] ideological speech,” since it “‘overtly trumpet[ed]’ the anti-abortion preference of the legislature.”17 Judge Hale acknowledged that the State’s asserted interests in facilitating informed consent and “the protection of fetal life and discouragement of abortion” were “substantial” ones, but concluded that H.B. 2 did not advance those interests, “and, in fact, act[ed] to [their] detriment.”18 Finally, H.B. 2 was not appropriately drawn to achieve the State’s interest — there was “no evidence” that the State’s prior informed consent requirements were inadequate in ensuring that patients received sufficient information to give consent for abortion.19 The State appealed the decision.20
The Sixth Circuit reversed and remanded.21 Writing for the panel, Judge Bush22 rejected the district court’s conclusions that H.B. 2 warranted heightened scrutiny and that it violated doctors’ First Amendment right to free speech.23 Judge Bush acknowledged that content-based regulations of speech, including physician speech, are generally subject to heightened scrutiny.24 But, as the Fifth and Eighth Circuits previously held, Casey dictated that an abortion-related informed consent statute “should be upheld so long as the disclosure is truthful, nonmisleading, and relevant to an abortion.”25 NIFLA, Judge Bush wrote, affirmed this three-prong standard.26 Judge Bush concluded that even if H.B. 2 compelled ideological speech, was inconsistent with standard medical practice, or caused detrimental psychological effects on patients, heightened scrutiny was not warranted.27 None of these factors, Judge Bush wrote, changed the level of scrutiny applicable to the regulation.28 Judge Bush further clarified that the entire analysis must turn on whether “H.B. 2 shares the same material attributes as the informed-consent statute in Casey.”29
H.B. 2, Judge Bush wrote, met Casey’s three-prong test because (1) it related to a medical procedure;30 (2) the required disclosures were truthful and nonmisleading;31 and (3) the information conveyed was relevant to the patient’s decision as to whether to obtain an abortion.32 Judge Bush conceded that H.B 2 differed from the statute at issue in Casey in some ways, but concluded that “[t]he sonogram requirements of H.B. 2 conveyed ‘materially identical’ information” to the Casey statute’s requirements.33 In fact, because of its detail and “individualized nature, a sonogram provides even more relevant information for the patient’s decision than any of the required materials at issue in Casey.”34
Judge Donald dissented. Judge Donald rejected the majority’s three-prong test, writing that those three elements “were central only to Casey’s undue burden analysis” — “[n]owhere [were] these elements even mentioned in Casey’s discussion of the First Amendment.”35 Instead, NIFLA established that “when the state regulates the content of physician speech in a manner that is inconsistent with the practice of medicine, [courts] must apply heightened scrutiny.”36 H.B. 2 triggered heightened scrutiny because its sonogram and auscultation requirements “ha[ve] no basis in the practice of medicine.”37 Judge Donald emphasized that H.B. 2’s requirements undermined two central principles underlying informed consent: “respect for the patient’s autonomy and sensitivity to the patient’s condition.”38 Informed consent also requires that doctors exercise discretion in when, how, and if to provide certain information — discretion that was completely taken away by H.B. 2.39 The statute, Judge Donald wrote, forced doctors to actively “cause patient harm” for “no medical purpose.”40
Judge Donald then found that H.B. 2 failed heightened scrutiny.41 H.B. 2 did not further the State’s interest in facilitating informed consent, and it was not narrowly drawn — the State presented no evidence to show how the previous abortion informed consent statute “was defective in facilitating informed consent.”42 Concluding, Judge Donald emphasized her “grave[] concern[]” that the precedent created by the majority would “open[] the floodgates to states . . . to manipulate doctor-patient discourse solely for ideological reasons.”43
Judge Donald was correct that speech-and-display laws like Kentucky’s, which require doctors to become mouthpieces for the state’s position on abortion, should be subject to heightened scrutiny. Enigmatic as it was, Casey’s First Amendment discussion was far from a decisive statement on the appropriateness of mere rational basis review for all physician compelled speech claims. The Supreme Court’s recent decision in NIFLA casts even more doubt on the circuit’s reading of Casey. By applying Casey’s three-prong undue burden standard to the First Amendment claim at issue in EMW, the Sixth Circuit missed an opportunity not only to clarify Casey’s First Amendment holding, but also to situate H.B. 2 within the framework set out by NIFLA. Instead, the court’s decision substantiates fears that rights claims by those who support abortion will ultimately be subject to different, and worse, judicial treatment than will claims by those seeking to restrict abortion.
As Judge Donald correctly noted in dissent, the three-prong “truthful, nonmisleading, and relevant” test was taken not from Casey’s First Amendment holding, but rather from the plurality’s Fourteenth Amendment analysis.44 When it came to the First Amendment challenge, Casey’s plurality gave just two sentences of guidance: “To be sure,” the plurality wrote, “the physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.”45 Some scholars suggest that Casey’s First Amendment holding, while not offering a fully fleshed-out framework, indicated a balancing of the interests at stake, and perhaps a rationality-with-bite standard of review.46 Others have concluded that the Casey Court did not offer a specific standard of review at all.47
With little guidance from the Court, a circuit split emerged post-Casey as courts began facing the new, more extreme iteration of abortion informed consent laws: so-called “speech-and-display” statutes. While the Fifth Circuit read Casey as warranting something akin to rational basis review for First Amendment claims against speech-and-display laws,48 the Fourth Circuit identified intermediate scrutiny as the appropriate level of review.49
By the time the Sixth Circuit faced EMW, however, the Fourth Circuit’s application of intermediate scrutiny was arguably vindicated by the Supreme Court itself in NIFLA. NIFLA concerned a California law that required licensed crisis pregnancy centers to inform clients, via a posted notice, that the state offers free or low-cost family planning services, or, in the case of unlicensed establishments, that they are not licensed as medical facilities.50 In striking down the notice requirement for licensed centers, Justice Thomas rejected California’s argument that the statute, as a regulation of professional conduct meant to facilitate informed consent, should warrant only rational basis review, finding instead that the statute, at a minimum, triggered intermediate scrutiny.51 While Justice Thomas acknowledged that laws designed to facilitate informed consent may be considered “regulations of professional conduct that incidentally burden speech,” and thus entitled to a lower level of scrutiny,52 the Court warned that this exception to general First Amendment principles should be read narrowly, particularly in the medical context where “candor is crucial.”53 The California law itself did not fall under the lower standard of scrutiny employed in Casey, Justice Thomas reasoned, because it did “not facilitate informed consent to a medical procedure.”54
At the most basic level, the EMW majority confused the matter by suggesting that NIFLA confirmed Casey’s three-prong undue burden test as the constitutional standard for a compelled speech claim by a medical professional.55 As Judge Donald pointed out, the words truthful, nonmisleading, and relevant were not mentioned in NIFLA, except in dissent.56 But further, even if one concedes that — unlike the law in NIFLA — H.B. 2 relates to a medical procedure, it does not necessarily follow that the law actually “facilitate[s] informed consent” to that procedure.57 As others have noted, NIFLA at the very least implied that simply slapping the label of “informed consent” on a required disclosure does not automatically render it constitutional.58 Analyzing H.B. 2’s ultrasound requirements against prevailing informed consent norms wouldn’t have just changed the analysis in EMW, but possibly affected the outcome.59 By reinvoking Casey’s undue burden test and mischaracterizing the NIFLA framework, the Sixth Circuit failed to fully contend with NIFLA’s implications for informed consent laws like H.B. 2.
Instead, the court’s analysis of NIFLA in EMW raised the troubling specter of a “constitutional gerrymander[]” of abortion — a situation where standard constitutional doctrine is distorted when it comes to abortion.60 While some commentators applauded NIFLA for greatly expanding First Amendment protections generally,61 for others NIFLA raised alarm about the Roberts Court’s use of the First Amendment as a weapon, and even a new First Amendment Lochnerism.62 Indeed, Judge Bush’s interpretation of NIFLA would put a thumb on the scale for antiabortion speech — allowing states to regulate abortion providers seemingly without limit under the guise of informed consent, while essentially forbidding states from regulating those advocating against abortion, even if they are dispensing misinformation.63
While Casey’s First Amendment holding may forever be mired in confusion, NIFLA’s lesson is clear: courts must be vigilant against state attempts to co-opt medical providers’ voices to deliver political, rather than medical, messages.64 This holding must apply equally to crisis pregnancy centers and abortion clinics. The role of courts is to apply the law fairly, without regard to political persuasion.65 A topic as divisive as abortion may be the ultimate test of this sacred duty, but of course one central value of the First Amendment is to protect unpopular speech. Courts fielding free speech challenges to speech-and-display laws in the future would be wise to grapple honestly with binding precedent, lest the very legitimacy of the courts comes into question.