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Member Research & Reports

Member Research & Reports

BU Professors: ‘Informed Consent’ No Excuse to Violate First Amendment

In a New England Journal of Medicine “Perspective” article, Dr. Wendy Mariner and Dr. George Annas, professors of health law, bioethics, and human rights at Boston University School of Public Health (BUSPH), challenged the trend among states to compel physicians to present the state’s point of view in the guise of informed consent.

“The First Amendment was adopted to keep the government from controlling what people, including physicians, say. Protection of patients’ rights should not be used as a pretext to promote partisan political purposes in the examining room,” wrote Dr. Annas and Dr. Mariner, also Boston University School of Law professors.

Among other cases, the duo dissects a recent decision by the U.S. Court of Appeals for the Fourth Circuit that struck down the so-called “Display of Real-Time View Requirement,” which required that North Carolina physicians display and explain the “presence, location, and dimensions” of an unborn child inside a woman’s uterus and offer the patient “the opportunity to hear the fetal heart tone.” The patient could try not to look or listen, but the physician was required to speak.

The appeals court concluded that the statute violated the First Amendment’s prohibition on state-compelled speech, calling the required display and explanation “ideological,” in that it sought to discourage women from having abortions.

“The First Amendment protects both the freedom to speak and the freedom not to speak. However, there are limits to both freedoms,” Dr. Mariner and Dr. Annas write.

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