The jurisprudence of abortion law is replete with instances in which the concerns of the woman seeking the procedure have taken a back seat. The newest battleground in abortion regulation involves mandatory ultrasound statutes touted as informed consent regulations. The analysis of courts confronting these statutes has turned on whether the mandatory disclosures violate the physician’s First Amendment right to be free from compelled speech. The particular breed of statute at issue in this paper requires a physician not only to perform an ultrasound, but also to make the images visible to the woman, to make audible the heartbeat, and to provide a simultaneous description of the images that highlights certain features of the fetus. Four states have enacted these speech and display mandatory ultrasound requirements, namely Louisiana, North Carolina, Texas, and Oklahoma. I argue that the woman’s right not to speak and to be free from unwanted speech are both implicated by this form of mandatory ultrasound statute, and as such, require a strict scrutiny analysis. Her body is being used as a platform for the state’s message, and it is an essential component in the production of the compelled speech. Applying a strict scrutiny analysis to the types of mandatory ultrasound laws at issue in cases in both the Fifth and Fourth Circuits, I conclude that the speech and display requirements do not satisfy the state’s compelling interest in protecting fetal life post-viability and promoting maternal health, nor are they narrowly tailored to achieve the legislation’s stated purpose.
First Amendment | Law and Gender
20 Cardozo Journal of Law & Gender 855 (2014).