This Article argues for a reframing of the discourse surrounding abortion-specific informed consent laws, calling for scholars and practitioners to focus not solely on the physician’s right against compelled speech, but also a patient’s right not to listen. Although this right has not been firmly recognized by the courts, a growing body of case law and scholarly papers has begun to acknowledge the potential for this right. This Article begins by examining how bridging the First Amendment rights of doctors-as-speakers and patients-as-listeners within the context of the unique doctor-patient relationship may help to establish a patient’s right not to hear. The Article then applies the captive audience doctrine to the abortion context, describing how patients are held “captive” within the contexts of the doctor’s office and of the state’s legislation. The Article then explores why re-focusing the discourse from the physician’s speech rights to the patient’s rights is essential to upholding and advancing public health law, generally, and informed consent law, specifically. The Article concludes by describing how the sole focus on the physician’s right may, in fact, be harmful to public health law, as it would greatly restrict how states can regulate medicine. By re-focusing on the patient’s right to hear/not to hear, the law can better protect the state’s ability to regulate public health, while also promoting patient agency and a woman’s choice to access abortion care.
A Patient's Right Not to Hear: The Public Health Case for Challenging Pre-Abortion Ultrasound Description Mandates by Refocusing on the Listener,
DePaul J. Women, Gender & L.
Available at: https://via.library.depaul.edu/jwgl/vol6/iss2/2