A Win for Free Speech

09.10.2019

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The Center for Reproductive Rights has secured a federal court decision blocking a North Dakota law that violates the First Amendment by forcing physicians to deliver medically unethical false statements to women seeking abortion. The preliminary injunction comes in a case brought by the Center on behalf of the American Medical Association (AMA) and Red River Women’s Clinic, the only abortion clinic in North Dakota.

The law, passed earlier this year and set to take effect last month, requires doctors to tell all women seeking abortion care that it may be possible to “reverse” the standard drug regimen used for medication abortion if the woman changes her mind – patently false claims that the American College of Obstetrics & Gynecologists says “are not based on science and do not meet clinical standards.”

In the decision, Chief Judge Daniel Hovland wrote, “State legislatures should not be mandating unproven medical treatments, or requiring physicians to provide patients with misleading and inaccurate information. The provisions of [this law] violate a physician’s right not to speak and go far beyond any informed consent laws addressed by the United States Supreme Court, the Eighth Circuit Court of Appeals, or other courts to date.”

Our suit, filed in June, argues that HB 1336 forces abortion providers to speak false or misleading statements aloud to patients, in violation of a doctor’s ethical obligation to provide complete and accurate information to their patients about their health care options, while potentially inflicting unnecessary harm on women exercising their constitutionally protected right to access abortion care.

If the law were allowed to go into effect, doctors would be placed in the untenable position of choosing between the threat of a criminal penalty for breaking the law and the risk of civil liability and other repercussions for lying to their patients and failing to uphold their ethical obligations.

The First Amendment’s protections against government-compelled speech mean that states cannot force doctors to deliver messages unrelated to the process of obtaining a patient’s informed consent for a particular medical procedure. This first-of-its-kind litigation relies in part on the U.S. Supreme Court’s 2018 ruling in National Institute of Family & Life Advocates v. Becerra, which clarified that the government cannot force medical professionals to act as its mouthpiece to advance controversial ideas.

Physicians in North Dakota are already required to deliver ideologically biased, non-medical speech under an existing law, which mandates that doctors tell women seeking an abortion that the procedure ends “the life of a whole, separate, unique, living human being.” As this litigation continues, we will seek to permanently block both compelled speech requirements.

Women in North Dakota face significant barriers to abortion care. Anti-abortion politicians in North Dakota have enacted a 24-hour waiting period for patients seeking abortion, limited the conditions under which state, public and private insurance can cover abortion services, banned the use of telemedicine for abortion, and required parental notification for minors seeking abortion services.

In addition to the AMA, the Center for Reproductive Rights and its partners at Weil Gotshal & Manges and Thomas Dickson of the Dickson Law Office in Bismarck are representing long-term North Dakota clients Dr. Kathryn Eggleston and Red River Women’s Clinic, the sole remaining abortion provider in North Dakota. This is the Center’s fourth case in the last eight years in North Dakota, where the Center has fought back against admitting-privilege laws, a six-week ban, and other unconstitutional abortion restrictions.

The most common form of medication abortion involves the combination of two prescription drugs, mifepristone and misoprostol, both pills that patients take orally. Mifepristone, also known as “RU-486” or by its commercial name Mifeprex, was first approved by the U.S. Food and Drug Administration in 2000. Since then, more than three million women in the United States have had a medication abortion. According to the FDA, the success rate for medication abortion in the United States is 97.4%.

Eight states—Arkansas, Idaho, Kentucky, North Dakota, South Dakota, Oklahoma, Nebraska, and Utah—have passed similar laws requiring abortion providers to tell patients about so-called medication abortion “reversal.” Five of those eight laws were passed in 2019.

So-called “abortion reversal” laws not only rely on scientifically unproven claims, they perpetuate myths about women who seek abortions and ignore the fact that the vast majority of women do not regret  their decision to have an abortion.