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Monday, May 4, 2015

Informed Consent and the First Amendment

Wendy K. Mariner, and George J. Annas
N Engl J Med 2015; 372:1285-1287
April 2, 2015
DOI: 10.1056/NEJMp1501190

Here is an excerpt:

Medical services are analogous to commercial practices for purposes of the First Amendment. The government has an interest in regulating medical practice to ensure safe and effective care. It also has an interest in ensuring that patients have enough accurate information to make voluntary, informed treatment decisions. Hence, it is the physician's duty under the doctrine of informed consent to provide material information about the benefits and risks of both the recommended treatment and its alternatives. However, the First Amendment prohibits the government from compelling people to make false or misleading statements or to express the government's point of view as their own.

Relying on the 1992 Supreme Court decision, North Carolina contended that the required fetal sonogram descriptions are merely statements of fact. The Fourth Circuit, however, found that North Carolina's display provision represented “quintessential compelled speech,” calling the required description “ideological; it conveys a particular opinion.” The court, finding that the “state's avowed intent and the anticipated effect” were to discourage abortion, said that the provision compelled physicians to serve as a mouthpiece for the state's point of view.

The entire article is here.