North Dakota doctors will not be compelled to lie to their patients thanks to a federal court decision on Tuesday that blocked the state’s “abortion reversal” law.
In 2019, five states—North Dakota, Nebraska, Oklahoma, Kentucky, and Arkansas—passed laws forcing physicians to tell patients that a medical abortion could be reversed. South Dakota, Idaho, and Utah also have such laws on the books; Arizona enacted an “abortion reversal” law in 2015 but repealed the measure after the state could not find a single credible expert to defend it in court. These laws obligate doctors to state that a patient can maintain her pregnancy if she changes her mind after beginning a medical abortion. That process involves two drugs, mifepristone (which halts the pregnancy) and misoprostol (which expels it from the uterus). Under the “abortion reversal” theory, a patient who has taken mifepristone but not misoprostol can counteract its effects with progesterone.
The problem with this theory is that it is totally unproven. As U.S. District Judge Daniel L. Hovland wrote on Tuesday, there is “no real, serious debate within the medical profession”; rather, the overwhelming majority of medical experts believe that “abortion reversal” is “experimental,” “dangerous,” and “unsupported by scientific evidence.” The American College of Obstetricians and Gynecologists has explained that the treatment is “not based on science” and does not “not meet clinical standards.” Similarly, the American Medical Association has described “abortion reversal” as “a claim wholly unsupported by the best, most reliable scientific evidence.” The AMA even joined the lawsuit against the North Dakota law, declaring that it forced doctors to “contraven[e] their ethical and legal obligations as medical providers.”
Even though experts agree that “abortion reversal” is untested and dangerous, anti-abortion advocates have urged states to compel doctors to tell their patients about it. Laws like North Dakota’s trace back to Abortion Pill Rescue, a program of the anti-abortion group Heartbeat International. An advisor for APR, Dr. George Delgado, has claimed that women who take progesterone after ingesting mifepristone may still carry their pregnancies to term. His studies did not meet basic clinic standards: They had no control group, a small sample size, and no supervision by an institutional review board or an ethical review committee. These flaws did not prevent states from passing laws that forced doctors to effectively endorse Delgado’s assertions.
The Supreme Court has upheld disclosure laws that require abortion providers to provide patients with factual information about the procedure to obtain their “informed consent.” But Hovland found that North Dakota’s law “goes far beyond” the typical “informed consent statute,” triggering grave free speech concerns. The statute compels doctors not to state the truth, but to “expres[s] ideological beliefs essentially designed to make it more difficult for women to choose an abortion.”
“A law which mandates that physicians become mouthpieces for a false, misleading, and controversial ‘abortion reversal’ message would not survive any level of constitutional scrutiny,” Hovland concluded. And the North Dakota statute does just that, requiring providers “to enunciate the State’s viewpoint” on a theory “that is devoid of credible scientific evidence.” The law therefore “violates a physician’s First Amendment protection against compelled speech.”
Hovland acknowledged that the government has broad leeway to require doctors to provide “objectively truthful and nonmisleading information before obtaining a patient’s informed consent to an abortion.” For instance, some states require doctors to describe the fetus and the show its image on an ultrasound. But Hovland drew the line at compulsory lies that encourage dangerous and “unproven medical treatments.” Even under relaxed constitutional scrutiny, he wrote, North Dakota’s compulsion of “misleading and inaccurate” speech cannot survive First Amendment review.
Tuesday’s decision is the latest legal skirmish over abortion-related speech, an issue upon which the Supreme Court is notoriously inconsistent. In 2018’s NIFLA v. Becerra, the court’s conservatives ruled that states cannot compel unlicensed “crisis pregnancy centers” to disclose their lack of a license. But they also held that states can force doctors to read a script designed to counsel patients against abortions. Anti-abortion judges have seized upon this distinction to uphold extreme measures that direct doctors to serve as a mouthpiece for the state’s anti-abortion message. “Abortion reversal” laws, however, go a step farther, requiring doctors to favorably describe an unsafe, pseudoscientific treatment. As Hovland noted, it is hard to see how the First Amendment could possibly tolerate such compelled speech. The state is not furthering informed consent; it is ordering doctors advocate quackery.
North Dakota will likely appeal Tuesday’s decision to the conservative 8th U.S. Circuit Court of Appeals, which does not always adhere to precedent where abortion is concerned. If the 8th Circuit—or, down the road, the Supreme Court—upholds the law, it will turn abortion clinics into First Amendment–free zones. And it would mark the height of hypocrisy for the Supreme Court to rule that the Constitution grants “crisis pregnancy centers” the right to mislead patients but does not grant doctors the right to tell the truth.
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