The Right to Remain Silent: Abortion and Compelled Physician Speech

Abstract

Across the country, courts have confronted the question of whether laws requiring physicians to display ultrasound images of fetuses and describe the human features violate the First Amendment to the U.S. Constitution. On April 5, 2019, in EMW Women’s Surgical Center, P.S.C. v. Beshear, the U.S. Court of Appeals for the Sixth Circuit joined the Fifth Circuit and upheld Kentucky’s law, thus rejecting a physician’s free speech challenge. The Supreme Court declined to review this decision without providing an explanation. The Sixth Circuit became the third federal appellate court to rule on such regulations, often referred to as “ultrasound narration laws” or “display and describe laws,” and joined the Fifth Circuit in upholding such a law against a First Amendment challenge. The Fourth Circuit, however, held that a North Carolina ultrasound narration law did, in fact, violate physicians’ First Amendment right to free speech. This Note discusses the varying approaches employed by circuit courts and proposes a framework for future analysis. Ultimately, this Note concludes that ultrasound narration laws violate physicians’ right to free speech.