Ever since the U.S. Supreme Court recognized the right to terminate a pregnancy in Roe v. Wade, many state legislatures have passed myriad regulations intended to complicate the process of obtaining an abortion. These regulations include “informed consent” provisions, such as the mandatory narrated ultrasound, which impose strict disclosure requirements on physicians who seek to perform abortions. Since these regulations compel physicians to speak when they otherwise might not, these laws implicate the First Amendment’s Free Speech Clause. As a result, physicians looking to perform abortions have an alternative avenue, apart from the Fourteenth Amendment’s Due Process Clause, for challenging the constitutionality of the mandatory narrated ultrasound and other “informed consent” regulations.
Due to a lack of clarity from the Supreme Court, circuit courts and scholars are currently divided over the constitutionality of mandatory narrated ultrasound laws under the First Amendment. This Note discusses the lower courts’ varying approaches to analyzing mandatory narrated ultrasound laws and demonstrates how the Supreme Court’s recent jurisprudence complicates the First Amendment analysis. Ultimately, this Note suggests a more streamlined test that lower courts can use when analyzing mandatory narrated ultrasound laws and concludes that these laws violate physicians’ First Amendment rights to free speech.