The Constitutional Right to Denial

The Constitutional Right to Denial

A federal district judge in Dallas has just struck down a Texas law requiring a physician to supply a pregnant woman with detailed information about the development of her fetus before aborting it, including a sonogram and a heartbeat recording. The court's reasoning is obscured in a maze of multi-pronged standards concerning strict scrutiny and compelling interests, but it boils down to a conviction that pregnant women should not be forced to confront irrelevant information that might distress them.

Before enacting the recent sonogram bill, Texas law had employed an ordinary informed-consent procedure based on written materials, of a sort that had been expressly approved by the Supreme Court in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey. The new sonogram law, however, provoked two legal challenges, both of which were upheld at least in part. First, the court struck down certain parts of the statute on grounds of vagueness. Second, it struck down certain parts on the ground of an inversion of traditional First Amendment rights: the citizen's right to freedom from unwanted messages, as upheld by the Supreme Court's 2000 decision in Hill v. Colorado, which involved limitations on the rights of abortion protesters to accost potential patients in or near a clinic.

On the vagueness front, the court began by noting tartly that, from the number of words the plaintiffs found objectionable, it was hard to imagine they shared a language with the bill's drafters. Nevertheless, the court agreed that a number of provisions were unconstitutionally vague, such as a reference to "the doctor who is to perform the abortion," the requirement to explain the sonogram and heartbeat in a manner intelligible to a layperson, certain details about how permitted waivers would operate to excuse the doctor and the pregnant woman from confronting the uncomfortable facts about her fetus, and followup obligations to supply the woman with additional information about such matters as the availability of suits to establish paternity and obtain child support. If these provisions are unconstitutionally vague, it's hard to imagine how any statute passes muster. (The court suggests that the Constitution prohibits "gotcha tactics" in a statute, which would be great news if any such approach ever were to be consistently applied.) But this is a garden-variety results-oriented specimen of judicial activism employed to strike down a law the judge makes it plain he objects to on ideological grounds :

The Court has grave doubts about the wisdom of the Act . . . . The Act’s onerous requirements will surely dissuade or prevent many competent doctors from performing abortions, making it significantly more difficult for pregnant women to obtain abortions. Forcing pregnant women to receive medical treatment from less-skilled providers certainly seems to be at odds with “protecting the physical and psychological health and well-beingof pregnant women,” one of the Act’s stated purposes. . . . In short, if the Texas Legislature wishes to prioritize an ideological agenda over the health and safety of women . . . .

But the "vagueness" analysis is not the most troubling aspect of the decision. The most troubling aspect surely concerns the principle of freedom of speech. As the plaintiffs argued:

The Act violates the plaintiff physicians’ right of free speech by using them as puppets to convey government-mandated speech (visual, verbal, and auditory) to a patient who does not wish to receive that information and who does not believe it material to her decision. This mandated speech falls outside accepted medical practice for informed consent and requires physicians to violate basic tenets of medical ethics. This unprecedented intrusion on a physician’s relationship with a patient in a private medical setting violates the First Amendment.

The Dallas court agreed that the Texas statute violates the First Amendment rights by compelling the speech of doctors to pregnant women.

Defenders of the statute argued that the 1992 Supreme Court decision in Casey permits "compelled speech" in the context of informed consent to a medical procedure, where the statutory requirements are narrowly tailored to advance the government's compelling interest (a traditional strict-scrutiny constitutional analysis). The Supreme Court recognized

a substantial government interest justifying a requirement that a woman be apprised of the health risks of abortion and childbirth. It cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision wasnot fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible. . . . [W]e permit a State to further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the State expresses a preference for childbirth over abortion. In short, requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice, one which might cause the woman to choose childbirth over abortion. This requirement cannot be considered a substantial obstacle to obtaining an abortion, and, it follows, there is no undue burden.

In the new decision, however, the Dallas court escaped this rather strong language by observing that the statutory attack in Casey was based on Fourteenth Amendment "due process" rights (i.e., freedom from "undue burdens") rather than First Amendment "compelled speech" restrictions. The Dallas court also noted that "important," "legitimate," and "substantial" interests were not necessarily "compelling," and that under Roe v. Wade the state's interest in protecting a fetus did not arise until the fetus was viable. The court did acknowledge the state's compelling interest in ensuring the informed consent of patients undergoing medical procedures, and it approved the state's decision to make some information available to the pregnant woman. Where the court balked was at the requirement to include in the disclosure a number of uncomfortable details:

[T]he Act under consideration here requires physicians to provide, in addition to those legitimate disclosures, additional information such as descriptions of “the presence of cardiac activity,” and “the presence of external members and internal organs” in the fetus or embryo. The Court does not think the disclosures required by the Act are particularly relevant to any compelling government interest. . . . The net result of these provisions is: (1) a physician is required to say things and take expressive actions with which the physician may not ideologically agree, and which the physician may feel are medically unnecessary; (2) the pregnant woman must not only passively receive this potentially unwanted speech and expression, but must also actively participate. . . . In the absence of a sufficiently weighty government interest, and a sufficiently narrow statute advancing that interest, neither of which have been argued by Defendants, the Constitution does not permit such compulsion.

I confess an inability to understand how someone can "ideologically disagree" with a picture of arms and legs, or with a recording of a fetal heartbeat. To my way of thinking, this is the crux of the decision, and it rests entirely on this judge's personal conviction that the presence of fetal arms, legs, and heartbeat are not "particularly relevant" to a pregnant woman's informed consent to an abortion. It's an awful lot of words just to come to the conclusion that people have a right to live in denial. The Dallas judge has ruled that pregnant women must not be confronted with the very information that might help them conclude whether the medical procedure they are contemplating involves another human life, or instead is as ethically neutral as blowing one's nose.