Smoking, Abortion, and the Right’s Free Speech Lies: How a Potential Supreme Court Pick Is Undermining Informed Consent
Just before Labor Day, the United States Court of Appeals for the District of Columbia sent shock waves through the public health community when it ruled that the Federal Drug Administration couldn’t require cigarette manufacturers to print graphic images and warnings on the effects of smoking on packaging because to do so violated the free speech rights of the tobacco industry. On the surface the case and the court’s opinion may appear to have nothing to do with abortion rights, but they do.
The government has, through ever-restricting informed consent laws, permitted the regulation of commercial speech in the context of abortion access for decades. That regulated speech has at times addressed the use of graphic images and warnings as a way to dissuade a woman from having an abortion. When the government seeks to regulate speech in this way it is imposing a preference and a bias on the speaker and is subject to some specific constitutional guidelines and the government must have a very good reason for either compelling individually to express certain views or subsidizing speech to which they object. This is true whether the speaker is an individual or a corporation — compelling speech is supposed to be very tricky stuff.
In the context of the cigarette warning case, the court makes it clear just how tricky that is. “No one doubts the government can promote smoking cessation programs; can use shock, shame, and moral opprobrium to discourage people from becoming smokers; and can use its taxing and regulatory authority to make smoking economically prohibitive and socially onerous. And the government can certainly require that consumers be fully informed about the dangers of hazardous products. But this case raises novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest — in this case, by making “every single pack of cigarettes in the country [a] mini billboard” for the government’s anti-smoking message” the court said.
Framed another way, “how much leeway should this Court grant the government when it seeks to compel a product’s manufacturer to convey the state’s subjective — and perhaps even ideological — view that consumers should reject this otherwise legal, but disfavored, product?”
The central question in this case is the central question before courts in every challenge to an informed consent restriction: how much leeway should the government get in pushing disclosures designed to get consumers to reject an otherwise legal but disfavored procedure?
In abortion rights cases the Supreme Court has made that answer clear — the government gets a considerable amount of leeway with the only prohibitions on the disclosures or related images being they must be truthful and they must not mislead. But even under that very broad umbrella, the courts have let stand mandated disclosures of discredited and medically-disproven links between abortion and suicide, the imposition of forced ultrasounds, and the use of graphic imagery on abortion-related material because those restrictions furthered the state’s declared interest in furthering embryonic or fetal life.