Government Compelled Speech

A 2005 law in South Dakota, which will go into effect now after a ruling by the U.S. Court of Appeals for the 8th District, appears that it will alter the parent-doctor relationship and compel doctors to engage in an ideological conversation about abortion. From Slate:

The South Dakota law requires doctors to give patients who come for an abortion a written statement telling them that "the abortion will terminate the life of a whole, separate, unique, living human being," and that they have "an existing relationship with that unborn human being" that is constitutionally protected. (What does the constitutionally protected part mean? Who knows.) In addition, doctors are ordered to describe "all known medical risks of the procedure and statistically significant risk factors," including "depression and related psychological distress" and "increased risk of suicide ideation and suicide."

Overlooking whether or not the information is actually factual, and the Slate article discuss there is good reason to be skeptical of some of the claims, the decision by the 8th Circuit challenges one of Justice Powell's main contention in Roe: the fetus is not a human being. Further, it compels doctors to make that argument to women whether they believe it or not, which seems to be a clear violation of the first amendment. If the first amendment is to hold any meaning whatsoever it must mean that it protects liberty of conscience and the government cannot tell you what to think. The government may be able to persuade you to adopt a view but it cannot compel you to adopt a view. If the government cannot force flag salutes or prayer in school, it would seem more than reasonable that doctors should not be compelled to discuss ideological viewpoints about abortion.

Also, this decision is demeaning to women as the government paternalism forces them to "think about their actions" as if they would not do this if the state had not told them.

This would be an interesting case before the Supreme Court, especially if the first amendment issue were raised. In the previous Supreme Court decision on late-term abortions, Justice Kennedy decision wrote about women the distress women feel about not having all of the information as if it were the Doctor's responsibility to provide it and, it seems that this bill is the logical extension of that position: if the doctors did not provide the information then the government should provide it. This could be a dilemma for Justice Scalia who desires the end of Roe v. Wade like no other but who also is a guardian of free speech and for Justice Thomas who desires the end of Roe but believes that the legislature not interfere with commerce, which in this case would be the relationship between a woman and her doctor.

The case may be important enough and novel enough for the Supremes to examine.