430 U.S. 705 (1977) (recognizing right of individuals to cover up the New Hampshire state motto, “Live Free or Die” on their automobile license plates).Google Scholar

Id, at 714.Google Scholar

Post, R. C., “Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech,” University of Illinois Law Review 2007, no3 (2007): 939–990, at 949–951.Google Scholar

Model Rules of Professional Conduct R. 1.4(a)(1). Versions of the Model Rules have been adopted in many states. In Indiana, Model Rule of Professional Conduct 1.4(a)(1) is codified as Indiana Rule of Professional Conduct 1.4(a)(1).Google Scholar

Model Rule of Professional Conduct R. 1.4(a)(3).Google Scholar

Model Rule of Professional Conduct R. 1.4(b).Google Scholar

Unif. Trust Code § 813(a). Versions of the Uniform Trust Code have been enacted in more than half of the states. In Michigan, § 813(a) is codified as Mich. Comp. Laws § 700.7814(1).Google Scholar

Unif Trust Code § 813(c). The trustee's duties differ depending on the type of beneficiary (e.g., current beneficiary or qualified beneficiary). For more discussion, see McGovern, W. M. Kurtz, S. F. English, D. M., Wills, Trusts and Estates: Including Taxation and Future Interests, 4th ed. (St. Paul: Thomson Reuters, 2010): At section 12.3.Google Scholar

Or they may dismiss First Amendment concerns with little discussion. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884 (1992). The Casey Court also observed that misleading or non-truthful speech runs afoul of the liberty clause of the 14th Amendment. Id., at 882.Google Scholar

Planned Parenthood of Minnesota, North Dakota, South Dakota v. Rounds, 653 F.3d 662, 670–672 (8th Cir. 2011) (with one judge dissenting). The Court also struck down the mandate as a violation of due process. Id., at 672.Google Scholar

S.D. Cod. Laws § 34–23A-10.1(1)(e) and (1)(e)(2).Google Scholar

Rounds, 653 F.3d at 673.Google Scholar

Planned Parenthood of Minnesota, North Dakota, South Dakota v. Rounds, 686 F.3d 889 (8th Cir. 2012) (en banc).Google Scholar

In addition to first amendment challenges to regulations that mandate physician speech, there have been first amendment challenges to regulations that restrict physician speech. See, e.g., Rust v. Sullivan, 500 U.S. 173 (1991) (permitting the U.S. Department of Health and Human Services to prevent recipients of federal funding for family planning services from counseling patients about abortion or making referrals for abortion)Google Scholar

Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) (invalidating a federal prohibition on the recommending of marijuana to patients for medical reasons)Google Scholar

Final Exit Network, Inc. v. State, 722 S.E.2d 722 (Ga. 2012) (striking down a Georgia statute that made it a criminal offense to publicly offer assistance to persons who wish to commit suicide, but not punishing the private provision of assistance).Google Scholar

Censored speech can raise more concerns than required speech, since more speech generally is preferable to less speech, but as with compelled speech, the nature of the patient-physician relationship may provide justification for restrictions on speech that would not be allowed in other settings. For example, legislatures might want to prevent physicians from exploiting their treatment relationships to invade their patients' privacy or to subject their patients to practices that may cause harm without providing any offsetting benefit. For relevant cases, see Wollschlaeger v. Governor of Florida, 760 F.3d 1195 (11th Cir. 2014) (permitting Florida to limit questioning of patients about gun ownership “when doing so is not necessary to providing the patient with good medical care”)Google Scholar

Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013) (permitting California to prohibit “mental health providers from engaging in ‘sexual orientation change efforts’ (‘SOCE’) with patients under 18 years of age”). Pennsylvania apparently has prohibited physicians from discussing some of the risks to health from fracking in order to protect proprietary information of energy companies that use fracking to extract natural gas. J. L. Dolgin, “Physician Speech and State Control: Furthering Partisan Interests at the Expense of Good Health,” New England Law Review 48, no2 (2014): 293–342, at 308–313.Google Scholar

Whether courts have drawn the right balance between the First Amendment and the state's power to regulate professional conduct in the context of restrictions on physician speech is an important question that is beyond the scope of this article.Google Scholar

Rounds, 653 F.3d at 673.Google Scholar

Dresser, R., “From Double Standard to Double Bind: Informed Choice in Abortion Law,” George Washington Law Review 76, no6 (2008): 1599–1622, at 1622.Google Scholar

Mala Corbin, C., “Compelled Disclosures,” Alabama Law Review 65, no5 (2014): 1277–1351, at 1338.Google Scholar

Post, supra note 3, at 950–951.Google Scholar

Under strict scrutiny, courts will not uphold a regulation of speech unless it is narrowly tailored to serve a compelling state interest. The government has more leeway to compel speech by businesses than speech by individuals, as when it imposes mandates to prevent consumers from being misled. Milavetz, Gallop & Milavetz v. United States, 559 U.S. 229 (2010).Google Scholar

Corbin, , supra note 17, at 1294–1295.Google Scholar

Planned Parenthood of Minnesota, North Dakota, South Dakota v. Rounds, 530 F.3d 724, 734–735 (8th Cir. 2008) (discussing the distinction between compelling doctors “to speak the State's ideological message” and requiring disclosure of “truthful, non-misleading information relevant to a patient's decision to have an abortion”);.Google Scholar

Berg, P., “Toward a First Amendment Theory of Doctor-Patient Discourse and the Right to Receive Unbiased Information,” Boston University Law Review 74, no2 (1994): 201–266, at 260–261.Google Scholar

Vandewalker, I., “Abortion and Informed Consent: How Biased Counseling Laws Mandate Violations of Medical Ethics,” Michigan Journal of Law and Gender 19, no1 (2012): 1–70, at 1.Google Scholar

Nayfield, S. G.et al, “Statutory Requirements for Disclosure of Breast Cancer Treatment Alternatives,” Journal of the National Cancer Institute 86, no16 (1994): 1202–1208Google Scholar

For a critical discussion of these statutes, see Andersen-Watts, R., “The Failure of Breast Cancer Informed Consent Statutes,” Michigan Journal of Gender and Law 14, no2 (2008):201–222.Google Scholar

Fisher, B., “Role of Science in the Treatment of Breast Cancer When Tumor Multicentricity is Present,” Journal of National Cancer Institute 103, no17 (2011): 1292–1298, at 1292–1293.Google Scholar

According to a 2008 article, 22 states have enacted such statutes. Andersen-Watts, , supra note 23, at 211.Google Scholar

Casey, , 505 U.S. at 852;.Google Scholar

Vargo, M. P., “The Right to Informed Choice: A Defense of the Texas Sonogram Law,” Michigan State University Journal of Medicine & Law 16, no3 (2012): 457–501, at 475.Google Scholar

Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 762 (1986).Google Scholar

See, e.g., Cod, S. D. Laws § 34–23A-10.1 (requiring disclosure of more than a dozen pieces of information)Google Scholar

Mo. Rev. Stat. § 188.027 (requiring an even longer list of information).Google Scholar

Cal. Health & Saf. Code § 109275(c)(1).Google Scholar

Cal. Health & Saf. Code § 109275(a).Google Scholar

Cancer Detection Section, California Department of Public Health, A Woman's Guide to Breast Cancer Treatment (January 2010), available at <http://www.mbc.ca.gov/Publications/Brochures/breast_cancer_english.pdf> (last visited February 11, 2015). (last visited February 11, 2015).' href=https://scholar.google.com/scholar?q=Cancer+Detection+Section,+California+Department+of+Public+Health,+A+Woman's+Guide+to+Breast+Cancer+Treatment+(January+2010),+available+at++(last+visited+February+11,+2015).>Google Scholar

Michigan's brochure runs about 65 pages. See Michigan Department of Community Health, What You Need to Know Before Treatment About: Breast Cancer (September 2008), available at <http://www.michigan.gov/documents/BCIC_final_110303_169314_7.pdf> (last visited February 11, 2015). (last visited February 11, 2015).' href=https://scholar.google.com/scholar?q=Michigan's+brochure+runs+about+65+pages.+See+Michigan+Department+of+Community+Health,+What+You+Need+to+Know+Before+Treatment+About:+Breast+Cancer+(September+2008),+available+at++(last+visited+February+11,+2015).>Google Scholar

See, e.g., Mich. Comp. Laws 333.17013(3).Google Scholar

However, it was common for states to recommend separate procedures for biopsy and treatment rather than combining biopsy and treatment into a single rocedure. Nayfield, supra note 23, at 1204. With separate procedures, patients would have time between the biopsy and the initiation of treatment to carefully explore their treatment options.Google Scholar

Corbin, , supra note 17, at 1288. One could view the bias in the type of information required as reflecting misleading speech. If patients hear more about the disadvantages of childbirth and the disadvantages of abortion, they may not get an accurate picture of their options. However, the abortion mandates do not preclude other speech by physicians during the informed consent process. Hence, the mandates permit physicians to supplement the required information with other information, and the doctrine of informed consent would require physicians to provide information that is balanced overall.Google Scholar

Compelled speech mandates may be less troublesome when imposed on health care workers who do not have the same fiduciary relationship with patients as do treating physicians, but that should not affect the First Amendment analysis. All individuals have First Amendment rights not to speak, so freedom of speech applies to both non-physician health care providers and physicians. And while states typically impose greater duties of informed consent on physicians than on other health care providers, states may extend the duty of informed consent to non-physician providers. Blotner v. Doreika, 678 S.E. 2d 80, 82 (Ga. 2009) (discussing Georgia's application of informed consent to acupuncturists, psychologists, and social workers, but not to chiropractors).Google Scholar

Andersen, K. S. Fox, D. M., “The Impact of Routine Inquiry Laws on Organ Donation,” Health Affairs 7, no5 (1988): 65–78, at 68–69Google Scholar

Among the states without required request laws, a majority required hospitals to inform family members about the option for donation. A provision for required request was included in the Uniform Anatomical Gift Act of 1987. Unif. Anat. Gift Act § 5(b). After Congress required hospitals to inform family members about donation, 42 U.S.C. § 1320b-8, and the Department of Health and Human Services issues regulations governing the process for informing families and requesting donation, 42 C.F.R. § 482.35(a)(3), the 2006 revision of the Uniform Anatomical Gift Act eliminated the required request provision. Most states have amended their anatomical gift acts to follow the 2006 model. M. A. Hall, M. A. Bobinski and Orentlicher, D., Health Care Law and Ethics, 8th ed. (New York: Wolters Kluwer Law & Business, 2013): At 649. Required request laws therefore may be less common now.Google Scholar

Harris, V., “Electroconvulsive Therapy: Administrative Codes, Legislation, and Professional Recommendations,” Journal of the American Academy of Psychiatry and the Law 34, no3 (2006): 406–411.Google Scholar

Colo. Rev. Stat. § 13-20-401(4)(d).Google Scholar

Id., at (4)(e) and (4)(g).Google Scholar

Dresser, , supra note 16, at 1600, 1622.Google Scholar

Physician aid in dying also is characterized as physician-assisted suicide.Google Scholar

Or. Rev. Stat. § 127.840. This waiting period is considerably longer than the typical 24-hour waiting period for abortion.Google Scholar

Dresser, , supra note 16, at 1622 no 138.Google Scholar

Or. Rev. Stat. § 127.815(1)(h). For another kind of informed consent mandate regarding end-of-life care, a New York statute “requires physicians and other health care practitioners to offer terminally ill patients ‘information and counseling regarding palliative care and end-of-life options appropriate to the patient, including…prognosis, risks and benefits of the various options; and the patient's legal rights to comprehensive pain and symptom management.”’ Weinberger, S. E.et al, “Legislative Interference with the Patient–Physician Relationship,” New England Journal of Medicine 367,no 16. (2012): 1557–1559, at 1557.Google Scholar

In re E.G., 549 N.E.2d 322, 327 (Ill. 1989).Google Scholar

197 U.S. 11 (1905).Google Scholar

Id, at 12–13.Google Scholar

Id, at 27–28. To be sure, Jacobson was decided well before the Supreme Court began to develop its fundamental rights doctrine in the 1960s and 1970s. But that does not explain the Court's reasoning. Just fourteen years before Jacobson, the Court wrote that “[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person.” Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).Google Scholar

Of course, abortion is very different from an appendectomy not only in terms of the state's interests, but also in terms of the patient's interests. Abortion legislation implicates a woman's fundamental interests not only in health care decision making but also in reproductive choice Nevertheless, by setting proper limits on the state's power to mandate physician speech, women's fundamental interests can be safeguarded. In particular, the requirements for truthful and non-ideological speech discussed in this paper should provide the needed protection.Google Scholar

About half the states rely on a professional standard for disclosure while the other states require physicians to disclose information that would be material to a reasonable patient. Hall et al., supra note 37 at 212–213.Google Scholar

Physicians may overprescribe medications or recommend surgeries because of the financial remuneration that they realize. Robertson, C. T. Rose, S. L. Kesselheim, A. S., “Effect of Financial Relationships on the Behavior of Healthcare Professionals,” Journal of Law, Medicine & Ethics 40, no 3. (2012): 452–466CrossRefGoogle Scholar

See also Post, supra note 3, at 982 (discussing the controversy over the risk of mercury poisoning from tooth amalgams (fillings) and whether the financial interests of dentists cloud their judgment).Google Scholar

For example, courts have been slow to require physicians to disclose information about their surgery success rates, conflicts of interest, or other personal information that might affect the quality of care. Orentlicher, D., “A Restatement of Health Care Law,” Brooklyn Law Review 79, no2. (2014): 435–456, at 439–440.Google Scholar

Casey, , 505 U.S. at 882.Google Scholar

Id, at 844.Google Scholar

18 Pa. Cons. Stat. 3205(a)(1).Google Scholar

According to a December 2012 Gallup poll, 61 percent of Americans support a right to abortion during the first three months of pregnancy, while only 27 percent support a right to abortion during the second three months of pregnancy, available at <http://www.gallup.com/poll/160058/majority-amer-icans-support-roe-wade-decision.aspx> (last visited February 11, 2015).+(last+visited+February+11,+2015).>Google Scholar

18 Pa. Cons. Stat. 3205(a)(2). In the case of rape, health care providers could omit information about paternal support. Id.Google Scholar

Casey, , 505 U.S. at 881–883.Google Scholar

The Court did not reject all speech mandates between its decisions in Roe and Casey. In some cases, states passed statutes that required a mix of permissible and impermissible disclosures. In those cases, the Court struck down the entire mandate, on the ground that it could not sever the impermissible provisions from the permissible ones but had to decide the constitutionality of the mandates in their entirety. Thornburgh, 476 U.S. at 759–766;.Google Scholar

City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 442–445 & no 37. (1983).Google Scholar

Tushnet, R., “More than a Feeling: Emotion and the First Amendment,” Harvard Law Review 127, no8. (2014): 2392–2433, at 2415–2416.Google Scholar

Dresser, , supra note 16, at 1609.Google Scholar

Cod, S. D. Laws § 34–23A-10.1(1)(b)Google Scholar

N.D. Cent. Code § 14–02.1–02Google Scholar

Mo. Rev. Stat. § 188.027.Google Scholar

Dresser, , supra note 16, at 1622;.Google Scholar

Dolgin, , supra note 14, at 340.Google Scholar

319 U.S. 624 (1943).Google Scholar

Id, at 642.Google Scholar

Acuna v. Turkish, 930 A.2d 416, 418 (N.J. 2007). The court's informed consent analysis arose in the context of a medical malpractice lawsuit brought by the woman after the abortion.Google Scholar

Corbin, , supra note 17, at 1297.Google Scholar

Orentlicher, D., “The Commercial Speech Doctrine in Health Regulation: The Clash Between the Public Interest in a Robust First Amendment and the Public Interest in Effective Protection from Harm,” American Journal of Law & Medicine 37, no2 & 3. (2011): 299–314, at 311.Google Scholar

Indeed, the Wooley Court specifically observed that “where the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such a message.” 430 U.S. at 717. Wooley arose when George Maynard was cited for covering up the “Live Free or Die” motto on the New Hampshire license plate. He objected because the motto was “repugnant to [his] moral, religious, and political beliefs.” Id. at 707.Google Scholar

530 F.3d 724 (8th Cir. 2008).Google Scholar

748 F.3d 359> (D.C. Cir. 2014). I am grateful to Thomas Joo for pointing me to this case.+(D.C.+Cir.+2014).+I+am+grateful+to+Thomas+Joo+for+pointing+me+to+this+case.>Google Scholar

Id, at 362–363.Google Scholar

Id, at 363–364, 370.Google Scholar

7 C.F.R. § 65.300.Google Scholar

National Assn., 748 F.3d at 371. In a more recent decision upholding country-of-origin disclosure regulations for meat products, the U.S. Court of Appeals for the D.C. Circuit sitting en banc repudiated part of the reasoning of the three-judge panel in the Congo minerals case (without commenting on the panel's discussion about the ideological nature of the minerals mandate). American Meat Institute v. U.S. Dept. of Agriculture, 760 F.3d 18 (D.C. Cir. 2014). It is possible that the court will override the rest of the Congo minerals reasoning in a future opinion.Google Scholar

Cod, S.D. Laws § 34–23A-10.1(1)(b).Google Scholar

Rounds, 530 F.3d at 735 (citing S.D. Cod. Laws § 34–23A-1(4)).Google Scholar

The Eighth Circuit relied on a dubious reading of a U.S. Supreme Court precedent, Meese v. Keene, 481 U.S. 465 (1987), to reach its result. In that case, the Court upheld a requirement that domestic exhibitors of films produced by foreign countries register the films as “political propaganda” with the Department of Justice. The Court rejected a claim of unconstitutional compelled ideological speech, in part because the statute defined political propaganda in a broad, non-pejorative way. Id., at 477–478Google Scholar

Hence, the Eighth Circuit relied on the definitional section of the South Dakota statute to mitigate the ideological nature of the mandated speech in its case. But there were some important differences between the political propaganda case and the Eighth Circuit case. The required disclosure to viewers of the films stated that the film was registered under the Foreign Agents Registration Act but did not include the words “political propaganda,” and the registration requirement had existed for more than four decades with no record of problems for exhibitors. Id., at 471, 483–484.Google Scholar

One would not have expected greater protection for the First Amendment rights of manufacturers than for abortion providers for another reason – abortion speech mandates interfere with the autonomy of people, while the Congo minerals mandate interfered with the autonomy of corporations. However, with the invigoration of the “commercial speech” doctrine in recent decades, differences between regulation of corporate speech and regulation of individual speech have greatly narrowed. Orentlicher, D., “The FDA's Graphic Tobacco Warnings and the First Amendment,” New England Journal of Medicine 369, no3 (2013): 204–206, at 204.Google Scholar

Cod, S.D. Laws § 34–23A-10.1(1)(e) and (1)(e)(2).Google Scholar

Rounds, 653 F.3d at 673 (with one judge dissenting).Google Scholar

Rounds, 686 F.3d at 898–899. The correlation reflects the fact that women choosing an abortion are already at an increased risk for depression, not that having an abortion increases their risk.Google Scholar

Corbin, , supra note 17, at 1302–1303.Google Scholar

Dresser, , supra note 16, at 1617–1618, 1622 (arguing that graphic descriptions or images are not justified under principles of informed consent).Google Scholar

Tushnet, supra note 61, at 2415, 2425–2432.Google Scholar

410 U.S. 113 (1973).Google Scholar

Thornburgh, 476 U.S. at 759–763.Google Scholar

Casey, 505 U.S. at 882.Google Scholar

Tushnet, , supra note 61, at 2424, 2430.Google Scholar

In other words, the quality of a decision is judged from the perspective of the individual making the decision rather than according to the values of the state.Google Scholar

The U.S. Court of Appeals for the Fourth Circuit has drawn a distinction between requiring physicians to provide informational material that takes sides and requiring physicians to deliver the information directly by speaking to the patient. According to the court, the state should not force physicians to become mouthpieces for its message. Stuart v. Camnitz, 774 F.3d 238, 253–254 (4th Cir. 2014). But the legal doctrine of informed consent necessarily requires physicians to become mouthpieces for the state. Requiring physicians to speak the state's message becomes a problem when the message is ideological, misleading, or not truthful.Google Scholar

R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1216–1217 (D.C. Cir. 2012).Google Scholar

Sanger, C., “Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice,” UCLA Law Review 56, no2. (2008): 351–408, at 396–397.Google Scholar

Id, at 403.Google Scholar

Id, at 378, 401;.Google Scholar

Corbin, , supra note 17, at 1332.Google Scholar

Corbin, , supra note 17, at 1338–1339;.Google Scholar

Sanger, , supra note 94, at 402.Google Scholar

Corbin acknowledges this point explicitly. Corbin, , supra note 17, at 1304–1307.Google Scholar

Tushnet, supra note 61, at 2422.Google Scholar

Corbin, , supra note 17, at 1306.Google Scholar

Bandes, S. A., “Emotions, Values, and the Construction of Risk,” University of Pennsylvania Law Review PENNumbra 156 (2008): 421–434, at 422–423Google Scholar

Corbin tries to distinguish ultrasound images from other speech that appeals to emotion with the argument that creating an association between a fetus and a child is illegitimate because it conflates the woman's view of a child with her view of a fetus. Corbin, supra note 17, at 1338–1339Google Scholar

In Corbin's view, this is like an advertiser using an attractive woman to sell a coffee maker and hoping that potential purchasers will conflate their views about the woman with their views of the coffee maker. Id. However, associating a fetus with a child is very different from associating a coffee maker with an attractive woman. Tushnet,supra note 61, at 2419–2420. Moreover, the ultrasound mandates apply to images of the fetus itself, not to images of a child.Google Scholar

Sawicki, N. N., “The Abortion Informed Consent Debate: More Light, Less Heat,” Cornell Journal of Law and Public Policy 21, no1. (2011): 1–38, at 34.Google Scholar

Wiebe, E. R. Adams, L., “Women's Perceptions about Seeing the Ultrasound Picture before an Abortion,” European Journal of Contraception & Reproductive Health Care 14,no 2. (2009): 97–102, at 99.Google Scholar

Id, at 99.Google Scholar

Id, at 99–100 (reporting the following comments: “‘Oh God, I do not know, but I said “bye” ‘, It's very helpful, glad to have this option’, ‘It actually made me feel better’, ‘It was neat’, ‘It made it more real’, ‘It made it easier for me’, ‘It was a bit sad’, ‘Very interesting and educational’, and ‘Thanks”’).Google Scholar

Bamigboye, A. A.et al, “Should Women View the Ultrasound Image Before First-Trimester Termination of Pregnancy?” South African Medical Journal 92, no6. (2002): 430–432Google Scholar

It was randomly decided whether or not the woman was offered the opportunity to view the ultrasound images. Id. at 430–431.Google Scholar

Id, at 432.Google Scholar

Wiebe, Adams, , supra note 103, at 101.Google Scholar

This study included more than 15,000 women compared to 500 in the South African study and 350 in the Canadian study. Gatter, M. et al., “Relationship Between Ultrasound Viewing and Proceeding to Abortion,” Obstetrics & Gynecology 123, no1 (2014): 81–87, at 81.Google Scholar

Id, at 81.Google Scholar

Id, at 83–85.Google Scholar

Id, at 85.Google Scholar

Statutes that require physicians to do more than simply offer women the opportunity to view the ultrasound raise additional concerns. The U.S. Court of Appeals for the Fourth Circuit struck North Carolina's ultrasound statute down because physicians were required to display the ultrasound image and describe it even for women who did not want to receive the mandated information. Stuart, 774 F.3d at 242, 251–254.Google Scholar

Tushnet, , supra note 61, at 2424–2425.Google Scholar

While the U.S. Court of Appeals for the 6th Circuit upheld the authority of Congress to require some graphic images, Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012), the U.S. Court of Appeals for the D.C. Circuit rejected the specific graphic images adopted by the Food and Drug AdministrationGoogle Scholar

Reynolds, R.J., 696 F.3d at 1208 (D.C. Cir. 2012). I think the D.C. Circuit erred when it blocked the images. They were designed to enhance consumer understanding of the risks of smoking; in other words, they were designed to better inform rather than misinform. Id. at 1231–1233 (Rogers, J., dissenting). Rather than appealing the decision, the FDA decided to revise its images. Orentlicher, supra note 80, at 205.Google Scholar

Two years after the D.C. Circuit's decision (which was by a three-judge panel), the en banc court rejected the Reynolds decision's logic in a case involving a requirement that meat products include information about their countries of origin. American Meat Institute, 760 F.3d at 22–23.Google Scholar

Sanger, , supra note 94, at 351, 397. About one-third of states have enacted some form of ultrasound legislation. Id. at 375.Google Scholar

Requiring that women undergo an ultrasound raises different questions than requiring physicians to offer women the opportunity to view their ultrasound images. That said, ultrasounds are commonly performed before an abortion for medical reasons. According to a national survey of abortion providers in the United States, more than 90 percent of the facilities perform ultrasounds as a routine matter for first-trimester abortions, and the other facilities often will perform ultrasounds for medical reasons. O'Connell, K.et al, “First-Trimester Surgical Abortion Practices: A Survey of National Abortion Federation Members,” Contraception 79, no5 (2009): 385–392, at 388.CrossRefGoogle Scholar

See, supra, at p. 9. See also Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570, 577–578 (5th Cir. 2012)Google Scholar

To be justified under the doctrine of informed consent, graphic image mandates should adhere to the principle that patients may refuse to hear or view information that is offered to them. Sawicki, supra note 102, at 34–35.Google Scholar

Vandewalker, , supra note 22, at 20.Google Scholar

Reynolds, R.J., 696 F.3d at 1216 (discussing the FDA's graphic images for cigarette packages).Google Scholar

Omer, S. B. Orenstein, W. A. Koplan, J. P., “Go Big and Go Fast – Vaccine Refusal and Disease Eradication,” New England Journal of Medicine 368, no15 (2013): 1374–1376, at 1374.CrossRefGoogle Scholar

Ordinarily, people who cannot be immunized themselves are protected by the “herd immunity” that develops when a high enough percentage of the community is vaccinated. Herd immunity protects against the spread of the disease. If too many parents refuse immunization for their children, then herd immunity is compromised. Herd immunity also protects immunized children, since vaccines are not 100 percent effective. Buttenheim, A. Jones, M. Baras, Y., “Exposure of California Kindergartners to Students with Personal Belief Exemptions from Mandated School Entry Vaccinations,” American Journal of Public Health 102, no8 (2012): e59–e67, at e59.Google Scholar

Corbin, , supra note 17, at 1328.Google Scholar

Id, at 1309–1339;.Google Scholar

Tushnet, , supra note 61, at 2404.Google Scholar

See, supra, note 115.Google Scholar

Lakey, 667 F.3d at 577–580Google Scholar

It may make sense to have different standards for compelled speech by corporations and professionals. On one hand, individuals have traditionally enjoyed greater free speech rights than have corporations, which suggests greater freedom for the government to impose disclosure mandates on companies than on physicians. On the other hand, as the discussion of informed consent indicated, physicians and other professionals assume duties to speak to their patients and clients from their fiduciary relationships with their patients and clients. See, at p. 1. Because corporations do not have fiduciary relationships with their customers, one can argue that the government has a weaker basis for imposing disclosure requirements on companies. In addition, the strengthening of the commercial speech doctrine's protection for corporate speech in recent years has brought first amendment doctrine for corporate speech closer to that for individual speech.Google Scholar

R.J. Reynolds, 696 F.3d at 1230–1232 (Rogers, J., dissenting). One of the proposed textual warnings – an 800-QUIT-NOW number to help smokers with their tobacco cessation efforts – was not designed to inform consumers about the health risks from cigarettes, but to promote the government's anti-smoking ideology. Accordingly, it did raise substantial first amendment concerns. Id., at 1236–1237Google Scholar

In American Meat Institute, 760 F.3d at 22–23, the en banc D.C. Circuit overruled the reasoning in R.J. Reynolds, so the graphic warnings may be revived after all.Google Scholar

See, supra, at p. 6–7.Google Scholar

See, supra, at p. 7.Google Scholar