Fordham Law Review
Helen Norton, Pregnancy and the First Amendment, 87 Fordham L. Rev. 2417 (2019), available at https://scholar.law.colorado.edu/articles/1225.
Suppose that you are pregnant and seated in the waiting room of a Planned Parenthood clinic, or maybe in a facility that advertises “Pregnant? We Can Help You.” This Essay discusses the First Amendment rules that apply to the government’s control of what you are about to hear.
If the government funds your clinic’s program, the U.S. Supreme Court has held that it does not violate the First Amendment’s Free Speech Clause when it forbids your health-care provider from offering you information about available abortion services. Nor does the government violate the Free Speech Clause, the Court has held, when it requires your doctor (regardless of whether she works in a program funded by the government) to tell you about “the availability of printed materials published by the State describing the fetus and providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion.”
On the other hand, the Court has held that the government probably does violate the Free Speech Clause when it requires unlicensed facilities offering pregnancy-related medical services like ultrasounds to disclose that they are unlicensed (because they do not employ health-care professionals). And the government probably also violates the Free Speech Clause, according to the Court, when it requires licensed health-care facilities whose “primary purpose” is “providing family planning or pregnancy-related services” to tell you that the state offers free or low-cost comprehensive pregnancy-related services, including prenatal care, contraception, and abortion.
These are the First Amendment rules, the Court tells us, for the government’s control of speech to pregnant women who seek pregnancy-related services. But these holdings fail to consider the pregnant women’s First Amendment interests as listeners in receiving accurate information. Rather, the Court focuses on the government’s interests in speaking to pregnant women, or on the interests of the speakers regulated by the government. Yet free speech theory and doctrine have long recognized that the First Amendment protects listeners’, as well as speakers’, democratic self-governance, enlightenment, and autonomy interests. And for this reason, First Amendment doctrine sometimes protects speech that furthers listeners’ interests and sometimes permits the regulation of speech that threatens those interests.
What would the First Amendment law that applies to speech to pregnant women look like if we considered the First Amendment interests of pregnant women? It would require the government to identify itself as the source of speech when it speaks to pregnant women about their reproductive decisions. It would prohibit the government from requiring others who speak to pregnant women about their reproductive decisions to deliver inaccurate or misleading speech to those women. And it would permit the government to require others who speak to pregnant women about their reproductive decisions to deliver accurate and relevant information to those women, even if that information does not discourage abortion.
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