FIRST AMENDMENT RIGHTS: DEFINING THE BOUNDARIES OF FREE SPEECH IN AN ABORTION CONTEXT

In recent years, states have passed a record number of informed consent laws requiring physicians to provide certain information to patients prior to an abortion procedure. Regulations are becoming increasingly more restrictive, however, and their constitutionality has been debated amongst several circuits. As physician speech regulations are being challenged for violating ph􏰢sicians􏰝 First Amendment rights, courts are vastl􏰢 differing in outcomes 􏰯 all due to different interpretations of constraints established in Casey. This Comment advocates for a more comprehensive approach to determine whether speech-and-display regulations impinge on First Amendment rights by discussing the appropriate legal framework when reviewing First Amendment issues. The discussion centers on a review of the First Amendment itself, a revisiting of Casey and its exploration of informed consent, and an examination of similar decisions by the Fourth, Fifth, and Eighth Circuits. This Comment argues that although the Fourth Circuit most accurately interpreted Casey, it inaptly reviewed the constitutionality of the regulation as a whole, leading to an inaccurate and less efficient conclusion. By using a more exhaustive analysis 􏰯 separating and reviewing each factor of the regulation on its own 􏰯 courts can pinpoint which sections of a regulation impinge on free speech rights instead of discarding or accepting the entire law. Ultimately, this Comment concludes that by employing this more comprehensive approach when reviewing speech-and-display requirements, courts will benefit from more consistent results and clearer boundaries that will reduce future litigation on the issue.