Physicians and the First Amendment.

In the November elections, the citizens of three states resoundingly defeated initiatives aimed at curtailing reproductive rights. In Colorado, a proposed amendment to the state’s Constitution would have given the same legal rights to fertilized eggs as to living persons. This amendment, which was rejected by a wide margin, would have had broad ramifications for abortion rights, the use of contraceptive agents, and stem-cell research. In California, a parental notification proposition backed by antiabortion forces was also rejected. In South Dakota, a ballot measure that would have effectively banned all abortions in the state was defeated, as was a similar measure 2 years ago. Those who support the principle of reproductive freedom can take heart in the overwhelming failure of these initiatives. But unbeknownst to many, there remains on the books in South Dakota another law, known as the informed consent to abortion law, that is cause for concern. The details of the law were recently described in the Journal by Lazzarini.1 Opponents of the law call it the script law, because it mandates that a physician use specific language when discussing abortion with a woman who has requested one. The physician must tell the woman that she will be terminating the life of a “whole, separate, unique, living human being” with whom she has an “existing relationship,” that her “relationship enjoys protection under the United States Constitution,” and that abortion terminates both that relationship and her “existing constitutional rights with regards to that relationship.”2 There must also be a discussion of what the law calls the risks of abortion, including depression and suicide, although their alleged link to abortion is unsupported by scientific evidence. Physicians who fail to adhere to the “script” may lose their medical licenses and may be charged with a criminal misdemeanor. Irrespective of one’s views on abortion, the speech mandated by the South Dakota law is extraordinary and unprecedented. Under their authority to regulate the practice of medicine, states can legally set standards for communication between physicians and patients. But as the U.S. Supreme Court has ruled, “the right of freedom of thought protected by the First Amendment . . . includes both the right to speak freely and the right to refrain from speaking at all.”3 With respect to communication about abortion, the Supreme Court in Planned Parenthood v. Casey granted states considerable latitude in requiring physicians to provide women requesting abortion with “truthful and nonmisleading information” about their health and the life of the unborn fetus.4 But even in the context of Casey, South Dakota’s “script law” goes much too far. Robert Post, a specialist in First Amendment law at Yale, concluded in a review of the South Dakota law that it infringes physicians’ First Amendment rights in at least two ways.5 Post notes that although Casey allows states to mandate some language about abortion, the South Dakota law is a transparent effort by the state to eliminate abortions by requiring specific ideological speech. In the context of the doctor–patient relationship, mandated ideological speech “runs afoul of the First Amendment.”5 First Amendment law would also stipulate that any mandated speech not be false or misleading, but the requirement in the South Dakota law that physicians tell