Doctor, Doctor, Give Me The News: First Amendment Empowers Display and Describe Requirements for Purposes of Informed Consent and Commercial Speech

A woman has recognized rights under the Constitution to obtain an abortion, but she also has a right to personal autonomy. To preserve this right, the state must regulate the disclosures regarding an abortion procedure to ensure the patient is getting the information needed to make an informed decision about what happens to her body during an abortion. As history shows, courts have dealt with abortions with care by honoring the woman’s autonomy. As the right to choose to get an abortion is fundamental, the right of the woman to be apprised of all of the facts and all of the risks associated with the procedure is equally as fundamental when looking at our nation’s history. One of the ways to advocate for the woman’s right to an abortion and to consent to what happens to her body is to uphold the constitutionality of the display and describe requirements and grant the power to compel disclosures in this context to the state. There is a circuit split between the Fourth, Eighth, Fifth, and Sixth Circuits over the constitutionality of the display and describe requirements of their respective states. The Fourth Circuit has held that the display and describe requirement violates the physician’s First Amendment rights by compelling the physician to disclose an ideological message. Whereas the Eighth, Fifth, and Sixth Circuits have upheld the requirements on the basis that they are medically necessary and thereby do not infringe on the constitutional rights of the physicians. The Supreme Court has denied review and subsequently, the answer is not clear. Abortion is a prevalent topic and upholding the display and describe statutes on constitutional grounds is vital to ensuring the continuing evolution of abortion litigation and legislation toward a more cohesive and united approach. The Supreme Court has held that a woman has the right to obtain an abortion and the state may not enact regulations that place an undue burden on that right. However, the state has the authority to reasonably regulate physician speech because the state has an interest in human life and maintaining the standards in the medical industry. The state may not compel a speaker to disclose an ideological message, but the state can compel the physician to apprise the patient of the risks and the alternatives, if any, of a medical procedure in order to obtain informed consent from the patient. The Fourth, Fifth, Sixth, and Eighth circuits disagree on the constitutionality of the display and describe requirements that North Carolina, Texas, Kentucky, and South Dakota, respectively, have enacted. This Article is the first to advocate for the woman’s right to be informed and to consent to the surgical procedure and urge the Supreme Court to resolve the circuit split and hold the display and describe requirements of the states’ abortion statutes as not violating the physician's First Amendment right to free speech. As all physicians are required to reveal information in order for the patient to give informed consent, displaying the ultrasound and explaining what the ultrasound depicts is medically necessary to obtain the woman’s informed consent; therefore, does not violate the physician's constitutional rights. This speech is commercial speech because it is speech involved in a commercial transaction and is subject to reasonable regulations. Individuals can differ on their beliefs regarding abortion and still agree that the woman has a right to know and consent to what happens to her body. This Article is not divisive; it protects to the woman’s right to an abortion, her right of access to information, and her right of personal autonomy.