Document Type

Article

Publication Title

New England Law Review

Publication Date

Winter 2014

Abstract

The first Section of Part I reviews two U.S. Supreme Court decisions, Rust v. Sullivan and Planned Parenthood of Southeastern Pennsylvania v. Casey. Each decision addressed the limits of permissible legislative interference with physician speech. These cases provide a framework for considering subsequent challenges to the constitutionality of statutes that place controls on physician speech. Section B then examines one lower federal court case decided in the wake of Rust and Casey. The case considered the constitutionality of government-imposed limits on physician speech. Part II considers the four examples described above in detail and examines the contours and implications of these statutory intrusions on clinician speech. Part III then contextualizes the laws examined in Part II in light of a wider set of social and legal shifts in assumptions about the physician-patient relationship. And Part IV categorizes the statutes reviewed in Part II in light of two intersecting categorizations that concern, respectively, the structure and the goals of each statute. It then concludes that laws controlling physician speech for ends unrelated to health care (or the public welfare more generally) are almost always a harmful usurpation of states' legislative powers.

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