Physicians’ First Amendment Rights and Patients’ Informed Consent

Nadia N. Sawicki, Loyola Chicago School of Law, Beazley Institute for Health Law and Policy, is publishing Informed Consent as Compelled Professional Speech: Fictions, Facts, and Open Questions in the Washington University Journal of Law and Policy. Here is the abstract.

This Article’s purpose is to clarify the boundaries of physicians’ First Amendment rights when communicating with patients. More specifically, this Article seeks to identify the most doctrinally consistent reading of Supreme Court free speech jurisprudence to understand what limits the First Amendment’s protection against compelled speech imposes in the context of state informed consent mandates. While the primary context in which this question has arisen is that of abortion-specific informed consent mandates, this inquiry has broader implications for informed consent law as a whole. If the First Amendment imposes substantial limits on the type of physician speech that states can compel, then every state informed consent law – from the most benign to the most controversial – is potentially at risk. This Article’s point-by-point explanation of the facts, fictions, and open questions relating to this issue will provide readers with an accessible guide to First Amendment doctrine in the context of compelled physician speech.

Download the article from SSRN at the link.