The North Carolina Woman’s Right to Know Act: An Unconstitutional Infringement on a Physician’s First Amendment Right to Free Speech

• Published in: Michigan journal of gender & law 2013 (20.2)
• Main Author: Bakelaar, Ryan
• Format: Article
• Language: English
• ISSN: 1095-8835; 2688-5565
• DOI: 10.36641/mjgl.20.2.north

The North Carolina Woman’s Right to Know Act represents the crossroads of the Supreme Court’s First Amendment, informed consent, and abortion-related jurisprudence. The Act requires physicians to perform an obstetric ultrasound, verbally convey specific information regarding ultrasonographic findings, and communicate a host of other information to patients seeking abortions. The purported goal of the Act is to ensure that physicians obtain appropriate informed consent from such patients. By compelling a physician to convey this information, the State violates the physician’s First Amendment rights. Indeed, the State may not compel an individual to convey the State’s ideological message. Further, any statute that mandates that an individual speak alters the content of that speech and is, therefore, subject to strict scrutiny. Pursuant to current United States Supreme Court precedents on compelled and content-based speech, the relevant portions of the Act are unconstitutional. Further, the claim made by the Act’s proponents that the speech involved is commercial speech, subject to a lesser degree of First Amendment scrutiny, fails under the Court’s commercial speech precedents. The State may reasonably regulate the medical profession by mandating that physicians obtain informed consent and convey limited, truthful information to patients. However, the Act’s extensive and one-size-fits-all approach to informed consent is not a reasonable regulation of medical practice. What is left, therefore, is an unconstitutional attempt by the State to infringe on the First Amendment rights of physicians providing abortions in North Carolina.