Free Speech Under Fire

06.25.2019

Primary Content
Text

The Center for Reproductive Rights has partnered with the American Medical Association to challenge a North Dakota law that violates the First Amendment by forcing physicians to deliver false, medically unethical statements to women seeking abortion.

The law, which is set to take effect on August 1st, requires doctors to tell all women seeking abortion care that the standard drug regimen used for medication abortion can be “reversed” if the woman changes her mind – claims that the American College of Obstetrics & Gynecologists say “are not based on science and do not meet clinical standards.”

The suit 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 is 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.” This litigation seeks to permanently block both compelled speech requirements, and requests a preliminary injunction that would prevent HB 1336 from going into effect in August.

In addition to the AMA, the Center for Reproductive Rights and its partners at Weil Gotshal & Manges and Tomas 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%.

Over the last five years at least 14 states have introduced legislation compelling doctors to counsel abortion patients on so-called “abortion reversal.” The Center previously challenged a similar Arizona law that was repealed before the case could be fully litigated.

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.