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.

There are approximately 6 million deaths a year caused by tobacco and tobacco related illness takes an enormous toll on our health care economy. Surely the state’s interest in dissuading people from smoking is as great as its interest in promoting embryonic or fetal life against the will of the woman, and surely, if the government can mandate doctors deliberately provide women with medically-misleading information, then a series of images from actual smoking-related injuries should be constitutionally permissible as well.

But, according to Judge Janice Rogers Brown, it is not.

Judge Janice Rogers Brown has quite the reputation in legal circles. Brown was appointed by President George W. Bush and confirmed in 2005 in what was a rousing and contentious confirmation proceeding, even by today’s standards. Brown famously described liberal democracy as a form of “slavery” and has yet to find a government regulation on the market that she wouldn’t describe as Marxist. Her judicial opinions are infected with her particular brand of Tea Party ideology and legal scholars and the left and the right have expressed concern with her willingness to infect her rulings from the bench with firey partisanship.

Brown fancies herself a libertarian, but comparing her regulatory decisions with her record on abortion shows she’s anything but. In American Academy of Pediatrics v. Daniel E. Lundgren, Brown, in a dissent, dismissed the idea of a minor’s right to privacy by holding that a parental notification law should not be thrown out even though it violated California state law because California state law cannot provide more privacy than the United States Constitution. The opinion not only displayed her hostility toward abortion rights, it also showed a troubling lack of compassion and understanding towards the plight of a young woman trying to navigate the legal system in order to get an abortion. More recently, in Catholic Charities of Sacramento v. Superior Court of Sacramento County, Brown was the sole dissent in a decision which found that Catholic Charities was violating a state contraceptive prescriptive equity statute. She stated that if employees felt that they were discriminated against they were free to move to “more congenial employment.”

Brown’s name frequently comes up in conservative circles as a potential Supreme Court nominee, so it’s important we take notice of these opinions and her inconsistencies now. Brown’s outrageous opposition to women’s rights is not isolated simply to reproductive health cases. She’s staunchly anti-affirmative action and, an opponent of battered women’s rights. And in a truly disturbing opinion from her time on the California Supreme Court asked, in the context of a criminal rape case involving a 17-year-old alleging date rape, if the woman had resisted enough. “Is persistence the same thing as force?” Brown wondered.

Given these views and Brown’s willingness to find fault in government regulation only in the instances when they conflict with her world view we can be all but certain how Brown would rule on a challenge to Roe v. Wade. With the possibility of as many as four open Supreme Court seats in the coming presidential term, the fact is Brown is one election away from an appointment to the high court and if that happens, women’s economic progress will be cast back decades.

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