Tort Law Implications of Compelled Physician Speech

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, but many modify or even reject the procedural requirements for tort liability. Most significantly, these laws relieve prospective plaintiffs of the burden of proving two fundamental elements of negligence - causation in fact and proximate causation. Thus, when states compel physician speech for political reasons, their actions challenge not only constitutional principles, but tort principles as well.