Abortion

Requiring Abortion Doctors to Narrate Ultrasound Violates First Amendment, 4th Circuit Rules

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chandramarsono/Flickr

A North Carolina law requiring physicians to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions has been struck down by the U.S. Court of Appeals for the 4th Circuit. Because the intent of these directives is ideological in nature, rather than medically necessary or required for informed consent, they represent compelled speech and are thus in violation of the First Amendment, the court held. 

Under the "Women's Right to Know Act", passed in 2011, North Carolina physicians must perform the above actions even if a woman "avert(s) her eyes" from the sonogram and "refus(es) to hear" the description. It was originally vetoed by Gov. Bev Purdue but her veto was overruled by the state's General Assembly. Since then it has been the subject of ample legal controversy, culminating in its coming before the federal appeals court in October. 

In an opinion filed today, Judge J. Harvie Wilkinson III—joined by Chief Judge William Byrd Traxler, Jr., and Judge Allyson Kay Duncan—affirmed the U.S. District Court for the Middle District of North Carolina's contention that the state's ultrasound act was unconstitutional. "This compelled speech, even though it is a regulation of the medical profession, is ideological in intent and in kind," wrote Wilkinson.

"The means used by North Carolina extend well beyond those states have customarily employed to effectuate their undeniable interests in ensuring informed consent and in protecting the sanctity of life in all its phases," Wilkinson continued. "We thus affirm the district court's holding that this compelled speech provision violates the First Amendment." 

The judges cited the 1977 case Wooley v. Maynard, in which the court held that "the right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind'", and the 1994 case Turner Broad. Sys. Inc. v. FCC, which said that regulations compelling ideological speech "pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion."

While "abortion may well be a special case because of the undeniable gravity of all that is involved," Wilkinson noted, "it cannot be so special a case that all other professional rights and medical norms go out the window. While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here." 

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  1. This decision makes sense. I am all for it becoming precedent. Now please explain that if the government can’t consistent with the 1st Amendment make an abortion doctor narrate an ultra sound, how can it consistent with the 4th Amendment make tobacco companies put warning labels on their product or really make anyone say anything as a condition of doing business or providing a service? That is really all t hat is going on here. The government is saying that as a condition of providing a legal service, abortion, the doctor has to say something. If that is unconstitutional, and I think it is, then it should be unconstitutional in every circumstance not just this one.

    1. Tobacco companies are Big Business (not to mention sell an icky product, for profit no less) so that obviously wouldn’t apply to them.

      Also, you obviously want children and pregnant women to smoke and die. Why do you hate the children?

      /s

    2. The Law is an Ass.
      Also, FYTW.

      Or maybe “nobody ever really wants to smoke (unlike aborting) except for the evul korporashun ads.” Except I think that falls under FYTW.

    3. No cuz abortion is special.

      Prog derp.

      1. I should have explained that better. Imagine a law that required doctors to show their patient an image of a tumor that they were going to remove and explain how they would do it. Now imagine the level of outrage at such a law. Outside of libertarian publications you would probably hear only thunderous applause.

        1. I would object to either law. Ultimately, what doctors say to their patients, absent fraud or real cases of lacking informed consent to a procedure, should not be the subject of regulation.

          If someone feels their doctor failed to fully explain a procedure and they are now harmed by that, their remedy is in tort law not government regulation. I object to the government mandating anyone say anything as a condition of doing business.

        2. Outside of libertarian publications you would probably hear only thunderous applause.

          I agree with you; it’d be sold under “protect childrunz from unnecessary surgery!” or some bullshit.

    4. “This decision makes sense. I am all for it becoming precedent. Now please explain that if the government can’t consistent with the 1st Amendment make an abortion doctor narrate an ultra sound, how can it consistent with the 4th Amendment make tobacco companies put warning labels on their product or really make anyone say anything as a condition of doing business or providing a service?”

      Because tobacco companies are all corporationy and therefore compelling them to speak is a necessary action against our corporate overlords.

      1. Beside that, they only do it for profits which are inherently suspect.

        As abortionists who do it for the love of killing babies, which is a more wholesome motivation.

        1. That’s sickening.

          For someone to joke about the destruction of human life (particularly the lives of children) is reprehensible. I get that commenters here don’t go for the whole class thing, but this is in a pernicious league of its own.

    5. I think courts have been striking the more graphic, larger warnings.

      1. Which makes even less sense. The whole point of the messages is to scare consumers.

        1. It’s the difference between saying ‘this product is associated with heart disease’ and ‘this product is bad or gross’

    6. If that is unconstitutional, and I think it is, then it should be unconstitutional in every circumstance not just this one.

      But John, that’d affect too many things liberals care about.

    7. I can live with this if it is applied more generally to communication that is forced by the State.

      Of interest, its hard to see how informed consent requirements themselves aren’t also forced speech. States prohibit doctors from providing care unless and until they describe the risks, benefits, and alternatives to the patients and get the patient’s affirmative consent.

      This is a pretty good example of informed consent in the real world:

      Imagine a law that required doctors to show their patient an image of a tumor that they were going to remove and explain how they would do it.

      The court seems to be saying that some forced speech is fine, depending on the reason for it. The bit about disclosure of information being “medically necessary” shows the court’s ignorance of what medically necessary means. Informed consent is never “medically” necessary.

      1. Of interest, its hard to see how informed consent requirements themselves aren’t also forced speech.

        Effectively yes. But it depends on how you define “forced speech”. I would object to those laws being in existence and that is not because I object to informed consent. Informed consent is a tort issue. No one should be forced to say anything by the state. But, if they fail to say something and that causes harm to someone because that person was deprived of fulling informed consent, they can live with the consequences in tort law.

        I would kill of any law that mandated people say anything. The problem is that the court will never do that or apply this doctrine to anything but abortion. This is nothing but results based jurisprudence. IT is a bad decision that gives a good result. Sure the result is right, but the decision still sucks because the court is just making special rules because it like abortion not actually applying any kind of consistent law.

        1. But it depends on how you define “forced speech”.

          Informed consent, including the disclosure of risks, benefits and alternatives by the physician, is specifically required by statute and regulation. To me, that makes it forced speech in a way that imposing liability on a doctor who misrepresents a procedure doesn’t.

          1. Yes it does. And for the third time on this thread, I think those laws are unconstitutional. Even if we repealed them, however, doctors would still be subject to the same sorts of requirements because of the tort system. But that is not “forced speech” in my opinion.,

    8. Because the government is requiring tobacco companies to make available information about the harm that may result from using their product, thereby affecting informed consent. Telling a woman what the fetus looks like does not affect her scientific understanding of what is happening, but instead intends to affect her ideological understanding of what is happening. She knows what an abortion is, and describing the fetus won’t change that- what thy are trying to do is change how she FEELS about it, and that is forced political speech.

      1. That is complete fucking horseshit. The information regarding the risks of smoking is well known and widely publicly available. It is not the tobacco company’s responsibility to inform you of that risk when the risk is so publicly available. Are Ice Cream companies required to tell you that their produce will make you fat?

        And it is not legislature’s role or power to decide what is medically necessary. That is entirely up to the doctor. The reason why this statute is unconstitutional is because it is the state stepping in and deciding what is medically necessary at all. The problem is not because it violates yours’ or anyone else’ half assed ideologically driven view of that subject.

    9. “While “abortion may well be a special case because of the undeniable gravity of all that is involved,” Wilkinson noted, “it cannot be so special a case that all other professional rights and medical norms go out the window.”

      This just strikes as completely disingenuous, as the courts would find reasons not to strike down a law that compelled professional speech under any other circumstance. Abortion is a special case, as the only activity that is apparently beyond government authority to regulate. The only medical procedure that you have an absolute right to.

    10. Ah, watching this shit develop in NC (where I live), it struck me as just another end-run play by the Right To Lifers to put as many impediments in the way of Right to Choice people so they’d give up and go away.

      Didn’t work.

      My real fear was that forcing the doctors to describe the fetus or the procedure would predictably lead to SCRIPTING their description. And therein lies the Mark of The Beast.

      And so very predictable.

      Thank you, 4th Circuit, for bringing a modicum of sanity to the party.

    1. Indeed.

      “the right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind'”

      Bullshit!

      1. Damn it.

        “Bullshit!”

  2. Let’s make sure I understand the situation. Orangutans have personhood, human feti(?) don’t?

    1. Female orangutans have a natural right to abortions, and humans, as their caretakers, have a duty to provide them. Once the logical conclusion of this policy takes place we won’t have to worry about orangutan personhood ever again.

    2. The existence of an orangutan does not place a woman’s right to “choose ” in jeopardy. So an orangutan can be a person, a fetus simply can’t.

      Logic, see?

    3. Orangutans are far more developed in many important ways than fetuses.

      1. Yep they’ve developed the motor skills to fling their shit when they don’t get their way.

        1. Early stage fetuses are miles from being able to do anything similar

          1. So are 1 day old babies, so it’s ok to kill them too, right?

          2. True, but so are 3-month olds.

            1. Actually most one day and three month old babies are completely capable of flinging their own poop at someone.

              Of course, the Oranguatan thing doesn’t establish them as the floor of personhood, it just says whatever that floor is, they’re above it.

              Actually, the case seems to just say that between human persons and inanimate things Dr. Zaius is closer to the first. That seems right to me.

  3. “This compelled speech, even though it is a regulation of the medical profession, is ideological in intent and in kind,”

    Please to be extending this reasoning to compelled purchases of health insurance, da?

    1. A purchase vs a speech is the distinction (completing either is still immoral of course)

      1. Compelling

  4. Because the intent of these directives is ideological in nature, rather than medically necessary or required for informed consent, they represent compelled speech and are thus in violation of the First Amendment, the court held.

    By the same token, label warnings in match boxes are also ideological in nature since they’re not necessary for informed consent or medically relevant.

    1. I can’t understand that line of reasoning.

      Q: Can the government force people to do X?

      A: Only if the legislature’s intention was pure.

      1. The idea is that as the speech moves closer to an ideological as opposed to a more factual statement there’s heightened free speech implications

        1. What’s not factual about showing an ultrasound, and explaining it?

          1. Read the opinion

            1. Well, the opinion calls out the alleged motivation for the requirement.

              You were making a statement about the content of the speech itself.

              1. That’s kind of part of speech, context such as intent can change semantics.

                1. Context doesn’t change facts though.

                  *SLD: Forcing someone to get an ultrasound/explain the ultrasound is fucking retarded.

                  1. Deciding when speech is ideological or not is something that context would be important to ( like deciding whether certain speech is funny or sarcastic).

                    1. “Here are the baby’s feet and hands. That little black flicker is the baby’s heartbeat. Right now it measure’s at approximately 9 inches long.”

                      vs.

                      “Your baby looks happy and healthy and seems to be saying please don’t kill me.”

                      The context of both of those statements could be an abortion doctor talking to his patient, but only one of them is ideological.

                    2. That’s funny. So if Chicago passed a law requiring gun sellers to recite the names of every child killed with a gun in the past year there would be nothing ideological about that?

                    3. There would be nothing ideological about the speech itself, no.

                      Of course there’s plenty of ideology behind the law itself, as there is with this one.

                    4. nice strawman bo-tard

                      ill fix it for you since you cant be bothered to make a coherent argument

                      citing the fact that a gun can kill is factually relevant information that the purchaser should be aware of

                      citing the names of dead kids is ideological bullshit

                      telling a woman the results of an ultrasound before she kills her kid is relevant to her decision making

                      telling her she will go to hell for murdering innocent children is ideological bullshit

                      neither should be mandated by a court, it should be up to the physician and his discretion as to what he tells his patients.

  5. Am I the only Walter Block evictionist here who is surprised by the lack of technological advancements in this area? Though I have this ever present hypothesis that too many people are bickering over the legalities of abortion rather than…you know…do the practical thing and come up with a better alternative. Just my $0.02 though.

    1. People that choose to have abortions have generally made poor choices to arrive at that point; I’d imagine that since children require parents, and parents who adopt generally don’t want a “defect,” that there are only so many avenues to explore until we can feed them to our New Robot Overlords.

    2. There is an alternative, readily available cheap birth control. There is also the morning after pill. If we made all of those things available over the counter, how does any woman have any excuse for wanting an elective abortion?

      1. If it’s not a person with rights what reason could there be for preventing it regardless of the availability of earlier options? It all comes down to that…

        1. If you completely and utterly beg the question of what is a “right” and just assume getting an abortion is one, sure.

          1. I’d almost go as far as to say that abortion is a natural right, but only if you do it with a coat hanger that you made yourself.

          2. It doesn’t have to do with it being a right. If it’s not a person why restrict it? You wouldn’t say someone couldn’t buy any usual medicine just because if they took another available medecine earlier they wouldn’t have to, would you?

            1. You wouldn’t say someone couldn’t buy any usual medicine just because if they took another available medecine earlier they wouldn’t have to, would you?

              Happens all the time (well, with a twist).

              Its totally routine for the federal government to dictate the course of treatment that it will pay for (that’s the twist) under Medicare.

              There are dozens, probably hundreds, of procedures that are only “allowed” if you have first tried other less aggressive treatments first.

              They aren’t, strictly speaking, illegal, because they can be done if the physician is willing to forego payment. But the Medicare requirements act as a de facto ban, especially in light of what can happen if you submit a covered and a non-covered service on the same bill. And what can happen if your bills are incomplete (that is, don’t reflect the non-covered services).

              1. Its totally routine for the federal government to dictate the course of treatment that it will pay for (that’s the twist) under Medicare.

                I have a solution!

                You’re going to love it, but everyone over 65 isn’t.

              2. Dictating what the government will pay for us a bit different than the government restricting other parties from doing something

      2. The pill isn’t completely effective (particularly once you factor in human error when taking it), so there would still be lots of “oops” to deal with.

        1. Clocking in at 99.9%, to me, is close enough. Would some people get shitty luck? Sure. But some people get shitty luck.

          1. 99.7% is the theoretical effectiveness (assuming it’s always taken properly). When you look at the actual effectiveness based on real world use, it’s effectiveness is only 91%:

            http://en.wikipedia.org/wiki/C…..ol_methods

            1. Resigning that 9% to unwanted motherhood is a small price to pay to teach them to have more careful sex!

              1. There’s also the large number problems here. If commecial airplanes had a 99.7% chance of reaching their destination, there would have been 3,000 airline crashes in the US alone last year.

            2. (assuming it’s always taken properly)

              “I forgot to take my medicine properly! That’s why I murdered a child!”

              1. seems legit, you know womans rights and all, (unless you happen to be a woman fetus)
                because apparently those dont have rights but apes now do?

    3. I guess you haven’t heard of some new inventions in the works: the Uterine Zipper and the Fetus Genie.

  6. Aww yeah, may the annual Christmas Aborshun flamefest commence!

    More seriously though, the law merely displayed that both TEAMS are willing to force you to do shit as long as it happens to be their TEAM’s agenda.

    1. This issue has nothing to do with abortion. I think abortion is barbaric and nothing but legalized infanticide. The fact remains, however, the law disagrees with me and it is legal. As much as I object to abortion, I don’t want to make things worse by having abortion become a wrecking ball to the rest of the Constitution in the name of using any means necessary to stop it.

      The thing that pisses me off about this case is not the ruling. It is the fact that the courts would never apply this standard to cases involving other legal products even though rational consistency demands that it should.

      1. It is the fact that the courts would never apply this standard to cases involving other legal products even though rational consistency demands that it should.

        I think we’re both old enough to know better than to expect the Government to adhere to the demands of pesky things like “Logic” and “Reason.”

      2. Whatever happened to that penumbra of privacy anyway? Only damn thing it was good for was legalizing abortion. Not preventing questionable searches or government snooping or mandated purchases.

        1. The penumbra was first invoked to strike down laws barring the sale of contraceptives.

  7. $6370 , I didnt believe that my brother was realy earning money in there spare time at their computer. . there moms best frend had bean doing this for less than seventeen months and by now repayed the loans on their cottage and got a brand new Porsche 911 .
    navigate to this site ==—-==—- http://www.jobsfish.com

  8. Here’s another example of forced speech, in the medical biz:

    A physician must notify a patient that the physician has a direct financial interest in a separate diagnostic, treatment and/or dispensary facility to which a patient has been referred, or in a separate prescribed treatment, good or service if the facility, dispensary, treatment, good or service is available on a competitive basis. (A.R.S. ?32?1854 (33) and (47)). (I/We) support these laws in order to help patients make reasoned financial decisions concerning their medical care.

    Sorry, squirrelz no like linky. Its from the Arizona medical board.

    How does the whole thing pass strict scrutiny. And how do you like that bolded part, where the doctor is required to recite his support for the law? How is that not purely ideological?

    1. I think you’re forgetting the Constitution’s Abortion Exception – abortion operates under different, and more favorable, rules, didn’t you know that?

    2. Eh? You’re paying the doctor for advice. Failing to disclose any conflicts of interest that would color that advice is a form of fraud.

      1. Its neither medically necessary information nor part of the informed consent process (which is defined, by law, as the disclosure of risks, benefits and alternatives).

        So how is it legal under the decision above?

        There is no general legal requirement that all people disclose all relevant conflicts of interest, so unless we have an absolute epidemic of fraud in this country, I’m not sure that failing to disclose a potential conflict is fraud in and of itself.

        And, in particular, how is requiring doctors to recite their support of the law not ideological?

        1. requiring doctors to recite their support of the law

          That’s totally fucked up.

        2. Certainly informed consent can reasonably be understood to include ‘I have a financial relationship incenting my advice.’ Having said that requiring them to say they support the law is terrible

        3. Doctors AREN’T required to cite their support:

          http://www.azleg.state.az.us/ars/32/01854.htm

          That bold bit is the Arizona Medical Board noting that they as an organization support the law in question, not part of the law itself.

    3. It doesn’t even pass rational relationship test. Knowing that the doctor has a financial interest in the lab that is doing my blood tests or the PT clinic he is sending me to doesn’t help me make any kind of informed decision. I suppose it would make me more suspect of his recommendation, but not being a doctor, I have no medical basis to doubt him. Just because he has an interest doesn’t mean he is giving me the wrong or unnecessary treatment. Indeed, the entire medical malpractice system is designed to keep him from doing that.

      That law is idiotic.

      1. I agree, John; the doctor’s primary interest, keeping you alive & healthy so you can continue to give him money, should really be all any patient needs to know about their doctor. I know I’ve quit seeing doctors that I suspected didn’t hold this as their primary value.

      2. This is one of the more ludicrous comments I’ve seen in a while. There’s no conceivable reason to want to know of a potentially biasing financial relationship?

        1. You go to the doctor believing they *don’t* have certain financial incentives to use certain products or services?

          1. Thats no objection to whether knowing any given incentive might be reasonably said to be helpful in weighing their advice

            1. I’m just saying that anyone assuming the opposite is an idiot, and no law is necessary to provide a patient (and moreover, compel a doctor) with an “incentive information welcoming packet.”

        2. There’s no conceivable reason to want to know of a potentially biasing financial relationship?

          Sure there is. You will go through life not knowing of thousands of potentially biasing financial relationships of people you do business with.

          Should every single person be required by law to disclose every potentially biasing financial relationship they have?

          Ex: Every franchise has a major financial relationship with the parent company. What are your thoughts on having a conflict of interest discussion, and signing a form, every time you order coffee at McDonald’s?

          1. Sure there is. You will go through life not knowing of thousands of potentially biasing financial relationships of people you do business with.

            This is exactly my point; every decision you make has a potentially biasing financial relationship with everything else in your life. If you’re compelled to disclose them all, it won’t be necessary because you won’t be able to do jack shit else by the time you finish your disclosure.

          2. I’m not paying the McDonald’s server to give me advice.

            Once again, I have to note that a lot of libertarians are weirdly pro-fraud.

            1. Where the fuck did you draw Fraud from?

              When did not telling you my financial interests become Fraud?

              1. If I am paying your for advice on the best course of treatment and you tell me to do something that makes you more money rather than being the best option, you’re not providing the service that you were claiming to provide. That is fraud.

                1. Gee, maybe, just maybe, we should encourage people to become informed of the medical treatment that they will get from doctor and stop acting like passive animals at the vet.

                  1. You’re doing exactly what SD says: maybe we should encourage people to learn self defense and not walk down dangerous streets by combating robbery less.

              2. Well, not pro fraud but pro conditions that would really facilitate fraud.

                I’m generally opposed to these laws, but it’s rational to think some of them would do some good (I think markets can develop mechanisms to largely address the issues within the NAP).

                1. Do you ever have any actual argument to put forward or just the equivalent of Right leaning grunts? If you think something’s wrong with Stormys clearly explained concept of fraud here why not say what that is?

                  1. Maybe because it’s NOT fraud?

                    1. Well, you said it’s not in all caps, that is a great rebuttal!

                    2. Even a textbook understanding of fraud shows that not disclosing every single financial gain you might make from someone’s decisions is not fraud. No other rebuttal is necessary.

                      (Oh, and sometimes I’m too lazy to html tag words for emphasis. But thanks for being snarky instead of explaining to me how it is, in fact, fraud.)

                    3. You’re wrong. The textbook would say that fraud is a misrepresentation of a material fact. I don’t think it’s generally thought that only explicit misrepresentations in answer to a query fall under that.

                      And you complaining of me ‘being snarky instead of explaining…’ is quite rich, isn’t it, given that other than pointing to SD’s rather explicitly stated reasoning on the subject I’ve offered my ideas in several paragraphs worth of response, while so far your argument has been to say it’s NOT!

                    4. Here’s a ‘textbook definition’

                      A false representation of a matter of fact?whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed?that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.

                      http://legal-dictionary.thefre……com/fraud

                    5. A false representation of a matter of fact?whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed?that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.

                      What if the place the doctor sends you to is the best place to go. Is it fraud then if he doesn’t tell you he has a vested interest in sending you?

                    6. So if you don’t disclose your investment in something but you didn’t intend to deceive another to their harm, you haven’t committed fraud?

                      Am I understanding that correctly?

            2. Once again, I have to note that a lot of libertarians are weirdly pro-fraud.

              There is nothing fraudulent about doing exactly what was asked for.

              If you don’t ask your doctor about his potentially compromising/biasing relationships, then he hasn’t defrauded you when he fails to mention them.

              If you want to know something, fucking ask.

              1. If you say ‘what’s the best procedure for me’ and the doc says ‘it’s x’ but really y is better but because of his financial connection to x he said that, wouldn’t that be fraud? Would it not be because it’s on you to ask about that?

                1. If you say ‘what’s the best procedure for me’ and the doc says ‘it’s x’ but really y is better

                  Bam, done, fraud. The rest is irrelevant. Now the real question is, who determines that Y is actually better than X?

                  1. So let’s say I don’t say ‘what’s the best procedure for me’ but do something nutty like assume the doctor will prescribe the best, but instead he picks the one he’s got a cozy relationship about. Not fraud?

                    1. Caveat emptor.

                      Things you don’t spell out in an agreement beforehand short of intentionally causing harm are left up to you and the other party to decide, as appropriate.

                      Now we’re really getting into questions of liability, not fraud.

                    2. Caveat emptor? Essentially you’re conceding Stormys point about ‘well, if that guy had better locks and lighting he wouldn’t have had his house robbed!’

                    3. There is a reason I selected a particular phrase and emphasized it with italics.

                      Theft is a form of harm. You did not “buy” the “services” of the thief, you were under no obligation to tell the thief that he is not to violate your property, and you are not culpable for the theft because you failed to impede the thief.

                      Please try to read past the first two words next time.

                    4. You are under no obligation to ask a thief not to rob you and a doctor is under no obligation to prescribe to you what’s best for you, unless you ask him if it’s the best?

                    5. Where did this obligation to do what’s “best” come from? Who decides what’s “best”? The doctor’s job is to treat you and, absent an explicit obligation to meet a certain standard of care, he is only on the hook if through his actions he causes you harm.

                    6. Doctor’s are professionals licensed by the state which uses coercive force to prevent others from doing the same, part of their deal with the state is that they do what’s best for the patient and do not act primarily in pecuniary terms. They take oaths to that effect.

                    7. Doctor’s are professionals licensed by the state which uses coercive force

                      Well, there’s your problem. Now what does this have to do with libertarians?

                2. When you bought that coffee, did you do a chemical test on it to make sure the McDonald’s employee didn’t urinate in it? Did you specifically tell him “I want a large coffee that you haven’t peed in” when you ordered it? Then you totally deserved to get a cup of hot piss. /anonderp

                  1. I know, it’s really incredible. When it comes to fraud it’s on the potential victim to be ever vigilant or else not cry foul!

                    I understand the healthy reaction to the growth in disclaimers, but that attitude swings too far the other way.

                    1. Their attitude is precisely what leads to the runaway growth in disclaimers.

                      You can’t on one hand say “anything not explictly spelled out in the deal is caveat emptor” and then on the other bitch when people start trying to nail down every minute detail in writing.

            3. Yep, if you aren’t for this thing, obviously you are Pro-whatever it is supposedly against.

          3. Buying coffee might be different than medical advice

        3. I suppose there is a reason, if you are a complete moron who judges what medical care to take based on financial interest.

          So what if you know that information, how does that rationally affect your decision? To say that it does is to say that you would forgo recommended medical care or treatment because you think your doctor is just trying to rip you off. That is a thoroughly ludicrous way to make medical decisions.

          1. So what if you know that information, how does that rationally affect your decision?

            It tells me I may need to look up the proposed course of treatment to see if it’s noremal for my condition and possibly go to a second doctor to get another opinion.

            If it’s something simple like my lab tests, I’d probably just take the risk. If I have cancer and this is a dicussion on how to treat it, I’m probably far more likely to want another view on the matter.

            1. It tells me I may need to look up the proposed course of treatment to see if it’s noremal for my condition and possibly go to a second doctor to get another opinion.

              If you don’t do this anyways, you’re an idiot, and pretty much deserve whatever happens as a consequence of your inaction.

              1. Again, is there any other crime we’d take this line? Well you failed to sufficiently fortify your house; you deserved to get robbed. Well you didn’t have enough guards; you deseerved to get murdered.

                But again, too many libertarians don’t actually consider fraud a crime.

                1. THIS IS FRAUD:

                  Doctor promises to remove your tumor, doctor actually removes your kidney.

                  THIS IS NOT FRAUD:

                  Doctor promises to remove your tumor, doctor actually removes your tumor, then doctor prescribes antibiotic to prevent infection and chooses the brand based upon his cozy relationship with the manufacturer.

                  1. Again, if I ask the doctor ‘will you give me the best medication for my speedy and full recovery’ and he says ‘yes’ but gives me one he knows or should know is inferior because he gets a kickback that’s not fraud? That’s incredible.

                    1. You may notice how that’s not the example I gave. I responded to your example above.

                    2. Well, of course there’s no disagreement on your examples, the question is what’s this closer to?

                    3. Motivation only matters after the fact. If there was no harm done, then the motivation is irrelevant. I consider fraud to be a form of harm, but it requires an explicit promise that was not followed through on or an explicit representation of fact that was knowingly incorrect at the time it was made. If you don’t spell out what you want, then you can’t fault the other guy for failing to read your mind.

                    4. But only people wishing from genies can be expected to be that explicitly thorough. I’m sorry, but I’m not going to put it on every old lady layperson to ask every pertinent question of professionals they do business with to explicitly ask the right questions or else they can’t cry foul. Doctors lawyers real estate agents have a general fiduciary duty to their clients.

                    5. You can’t cry foul, absent a prior arrangement, if there is no harm.

                      What is so fucking hard for you to understand?

                      You know what, Bo, you have misrepresented yourself as an honest and engaging debater. Sure, you didn’t make any such promise to me, and I didn’t bother to ask you about it beforehand, but I really feel like by virtue of participating in a discussion forum that you owe me a higher level of logical rigor and thoughtfulness in your argumentation.

                      I’m assuming that you are going to provide some compensation to me for this egregious violation of your duty to mentally satisfy me?

                    6. The harm is the misrepresentation and the fact you got less than the professionally best treatment, which could result in actual physical harm. When you go to a doctor or other professional they have a legal and expected fiduciary duty to do what is best for you and to not act out of primarily pecuniary interest. When they do not do so they have misrepresented their services.

                    7. Everybody who works does so out of “primarily pecuniary interest”. There is no misrepresentation when you walk into an office and the first sign you read is “payment due at time of service”.

                      If you don’t like the fact that doctors can make decisions you might not agree with, then either spell out what you want or stay the fuck home. No one owes you potentially life-saving treatment simply because you decided to grace the Earth with your presence.

                      I would think a fucking capitalist would understand that no profession, not even medicine, is immune to the laws of economics, and I would think a fucking libertarian would understand that the state should not be handing out privileges and regulations.

                    8. There at some level has to be an implied promise inherent in a transaction, or society is not going to be able to function at a level more developed than subsitence farming. If I to a restaurant, I can’t start with a three hour meeting with the entire staff, where in I itemize every possible way they could screw me over and extract an item by item promise from all the employees not to engage in that behavior.

                    9. There at some level has to be an implied promise inherent in a transaction, or society is not going to be able to function at a level more developed than subsitence farming.

                      There is a government to deal with cases of demonstrable harm. Repeat that until you are blue in the face or you understand it, whichever comes first.

                      Absent harm, if you want something from someone, you have to spell it out. No one owes you anything other than not harming you.

                      There are rules in a society even if you don’t throw people in jail for offending your delicate sensibilities. You can, for example, not patronize a restaurant if you feel they are going to screw you. If a restaurant develops a reputation for screwing people, then assuming people don’t want to be screwed, that restaurant is going to lose business.

                      For murder, assault, rape, and theft, there’s criminal law. For everything else, there’s contract law.

                      Not criminalizing actions that don’t harm people is not fucking anarchy.

              2. “If you don’t do this anyways, you’re an idiot, and pretty much deserve whatever happens as a consequence of your inaction.”

                See Johns comments for such idiocy

          2. A complete moron would weigh potentially biasing motives when judging advice? John, only a complete moron would say something that stupid.

            1. yeah, not inclined to side with bo either but that is some derptastic stuff out of an otherwise rational person. my friend has been being dragged through the medical ringer for the past 9 years without a diagnosis for her ailment, just more and more “tests” and surgeries like a government funded cash cow they keep milking each month, if she wasnt on the government healthcare she would probably be able to get a real diagnosis or treatment, but she is so she is forced to go to the one doctor who can basically prescribe any tests he wants over and over looting the gov.
              not that informing her he has a vested financial interest in keeping her sick would do any good unless she moved out of the area.
              not to be morbid but i fail to see the benefits in keeping people like her alive and suffering instead of letting her illness take its logical course if she will never get better and only suffers more each day

        4. Bo, you must take the cabbies in foreign lands at their word when they swear they brought you to the best bar in town and totally swear that the trip took 9 left turns around the same buildings to get you to your destination
          .
          .
          of course he has a financial incentive, your fucking paying him for his signature half the time so you can get the meds you already knew you needed, how is that not a scam?

  9. Recall that Judge Wilkinson is the same genius who denounced the Supreme Court for its decisions supporting 2nd Amendment rights – in fact, Wilkinson said protecting the 2nd Amendment was just as illegitimate as Roe v. Wade, and that these matters should be decided by the elected representatives of the people.

    Except when they aren’t, apparently.

    1. Here we go:

      “Wilkinson criticizes the Supreme Court’s decision in District of Columbia v. Heller, and argues that the majority opinion is wrong for the same reasons that Roe v. Wade was wrong: both cases violated “judicial values,” such as deference to legislative decisions, avoidance of political thickets, and federalism.”

      http://www.volokh.com/posts/1228348957.shtml

      1. My fucking god. How in the fuck could anyone stand there with a straight face and say “But, if we strike down this law, we might make legislators mad!”

      2. deference to legislative decisions

        Any judge who says this is a moron who is forgetting that a major part of their job is to be a check on legislative decisions.

    2. The fact that he opposes Roe but still found this law bad actually undercuts you

      1. That fact that he’s a moron undercuts me? How so?

        1. He’s a moron to oppose Roe? Yeah, I agree

          1. He’s a moron whose position is incoherent and (it now seems) result-oriented.

            Limiting the 2nd amendment right to bear arms: Perfectly fine

            Informed consent law on abortion: Unconstitutional

            1. The famous judicial restraint advocate is results oriented? Sheesh.

              Roe and Heller were the kind of landmark law making cases such a judge is not going to like. Compelled speech case law is much more well established

              1. Left-wing radicals say there’s a constitutional right to abortion, right-wing radicals say that the 2nd Amendment protects an individual right to bear arms – both sides are *so* extreme!

                1. Both decisions were major shifts in the law Eddie. You get that, right? And here’s the other part to get: advocates of judicial restraint, which was the conservative philosophy when Wilkinson was nominated, think judges should, being conservative, be reluctant to make such major shifts.

                  1. So I guess I’m not a conservative by your definition. Oh, well, I’ll have to live with that.

                    1. Given your handle, that’s pretty ironic.

                    2. Conservatives have somewhat recently learned to love more activist approaches. And I’m not saying his philosophy is correct, just that what you think is a glaring contradiction of it is not at all.

                    3. By the time of Heller, most of the country supported the 2nd Amendment as an individual right, as indeed they had supported it since the Founding. A few outlaw jurisdictions like D.C. and Chicago rejected the Amendment, but this was a country where Congress passed a law in 1986 to protect the Amendment, and where liberal law professors acknowledged that it protected an individual right. Heller merely ratified what Americans had always held, and what even lib professors were beginning to acknowledge.

                    4. So when Heller came down gun rights advocates were like ‘no big deal!’ Of course not! We were like ‘finally, the SCOTUS has recognized an individual right’ and scores of lawsuits were then launched. It was a huge decision.

                    5. You said it was a “major shift in the law.” No, it was the Court, by a narrow majority, acknowledging that the law meant what it always had meant.

                      It was a victory because, as the Red Queen said in Alice Through the Looking Glass, sometimes you have to run hard just to stay in place.

                    6. Just at this moment, somehow or other, they began to run.
                      Alice never could quite make out, in thinking it over afterwards, how it was that they began: all she remembers is, that they were running hand in hand, and the Queen went so fast that it was all she could do to keep up with her: and still the Queen kept crying ‘Faster! Faster!’ but Alice felt she COULD NOT go faster, though she had not breath left to say so.
                      The most curious part of the thing was, that the trees and the other things round them never changed their places at all: however fast they went, they never seemed to pass anything. ‘I wonder if all the things move along with us?’ thought poor puzzled Alice. And the Queen seemed to guess her thoughts, for she cried, ‘Faster! Don’t try to talk!’
                      Not that Alice had any idea of doing THAT. She felt as if she would never be able to talk again, she was getting so much out of breath: and still the Queen cried ‘Faster! Faster!’ and dragged her along. ‘Are we nearly there?’ Alice managed to pant out at last.
                      ‘Nearly there!’ the Queen repeated. ‘Why, we passed it ten minutes ago! Faster!’ And they ran on for a time in silence, with the wind whistling in Alice’s ears, and almost blowing her hair off her head, she fancied.

                    7. ‘Now! Now!’ cried the Queen. ‘Faster! Faster!’ And they went so fast that at last they seemed to skim through the air, hardly touching the ground with their feet, till suddenly, just as Alice was getting quite exhausted, they stopped, and she found herself sitting on the ground, breathless and giddy.
                      The Queen propped her up against a tree, and said kindly, ‘You may rest a little now.’
                      Alice looked round her in great surprise. ‘Why, I do believe we’ve been under this tree the whole time! Everything’s just as it was!’
                      ‘Of course it is,’ said the Queen, ‘what would you have it?’
                      ‘Well, in OUR country,’ said Alice, still panting a little, ‘you’d generally get to somewhere else?if you ran very fast for a long time, as we’ve been doing.’
                      ‘A slow sort of country!’ said the Queen. ‘Now, HERE, you see, it takes all the running YOU can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!’

                      http://www.gutenberg.org/files/12/12-h/12-h.htm

                    8. Eddie, for decades before Heller every Circuit had rejected that there was an individual right to carry. And again, dozens if not hundreds of lawsuits were literally launched after Heller and under its rationale.

                    9. First, you are mistaken because the 5th circuit acknowledged that bearing arms was an individual right, even before heller, and second Congress (thank God) accepted the individual rights theory and the circuits have no authority to repeal congressional statutes for being too protective of liberty.

                    10. Check out the findings section of the firearms owners protection act of 1986.

  10. Oh, and just see a doctor who works for a pharma company write an article aimed at the general public, praising the benefits of some off-label use of one of the company’s medicines. Find out how much medical free speech you have *then!*

    1. Again, this case is nothing but the judge saying “I like abortion and will strike down any law restricting it using any legal doctrine available”. You are dead on correct. If the state can’t tell a doctor he has to narrate an ultra sound, it sure as hell can’t tell him that he can’t recommend a drug for off label uses.

      1. They would argue (and did) that there is no medical reason to narrate the ultrasound, but that there is a medical need to stop doctors from recommending unapproved treatments.

        1. And that would be making a completely dishonest argument. First, it is the doctor’s judgement whether narrating an ultrasound has a medical reason. If there can be no medical reason for doing so, then shouldn’t the state be banning it altogether as a waste of time and money? They don’t believe that at all. And indeed, the doctor narrating the ultra sound and telling you what you are looking at is pretty fucking essential for hte ultra sound to mean anything to the patient or play any role in them making an informed decision.

          And there is enormous medical value in off label uses of drugs. If there wasn’t, doctors would be recommending it. The problem is not the medical value. The problem is God fucking forbid a doctor ever treat a patient or scientific knowledge advance without it first being subject to years of slavery before the FDA bureaucrats. That is all that was going on there. The FDA didn’t want people using drugs without first coming to them.

          Those argument are an insult to the dignity of the court.

          1. And that would be making a completely dishonest argument

            And we all know nobody involved in Government would ever do that.

          2. Those argument are an insult to the dignity of the court.

            Ok, but they still think that the government bureaucracy is the sole authority on what and what isn’t medically necessary allowed.

      2. ” this case is nothing but the judge saying “I like abortion”

        Wilkinson is a noted conservative judge who thinks Roe was a terrible decision John.

    2. Yeah, it’s funny, I don’t remember seeing the “Unless the FDA says you can’t say that” clause in the first amendment.

      1. Fire in a crowded theater! Checkmate.

        1. I laughed out loud because that’s exactly what they believe.

          1. OT: Totally a fan of shouting “FIRE!” in a crowded theater. Helps weed out the morons.

            1. Justifiable in a Great White concert.

              Too soon?

  11. OT: JUST HEARD JOE COCKER DIED. Thought he was already dead?? Maybe?

    Does Lou Reed know about this?

    1. First thoughts:

      Who’s Joe Cocker?

      1. I always think of You can Leave your Hat On from 9 1/2 weeks.

        1. Still drawing a blank here.

          1. Its a good tune. Stripper music.

            1. It is a very good tune and very good stripper music. It is kind of the thinking man’s stripper’s “You shook me all night long”.

      2. He “sang” using all the phlegm he could muster from his gullet such memorable tunes as “With a little help from my friends” and “Cry me a river.”

        /not a fan

    2. At least Joe Cocker produced a really funny moment on SNL. That is more than Reed ever produced.

      1. Joe says, “And it’s ‘High Time We I Went’.”

        1. He did a record with one of the coolest titles in rock history; Mad Dogs and Englishman.

          Lou fucking Reed never had a thought that cool much less came up with an album name that was that cool. Something about early 70s Brit bands and cool record names. Thee was also Traffic’s “John Barleycorn Must Die”. That is another cool album name.

          1. I love that record.

    3. I didn’t know he was English.

  12. Now please explain that if the government can’t consistent with the 1st Amendment make an abortion doctor narrate an ultra sound, how can it consistent with the 4th Amendment make tobacco companies put warning labels on their product or really make anyone say anything as a condition of doing business or providing a service?

    I am entirely on board with this, though to be fair I am entirely on board with doing away with government entirely.

    If I was a minarchist, I might want to throw in a proviso that makes fraud illegal, but directed speech like this is always wrong.

    1. I wouldn’t get rid of the government. I still want courts and I still think fraud is a crime and operating on someone without their informed consent a battery. This is solved via the tort system not with proscriptive laws. The government should never be able to mandate that someone say something, though its courts should be able to hold someone responsible for any bad outcomes that result from their failure to say something.

      1. I too also “still want courts and I still think fraud is a crime and operating on someone without their informed consent a battery. This is solved via the tort system not with proscriptive laws.”

        Unlike you, I don’t think a government with a declared monopoly on the use of force, and the willingness to employ force in ways that neither of us is likely to always cheer on, is necessary to provide any of these.

        We obviously aren’t going to agree on this, just stating my POV.

        1. They don’t have a monopoly on force. But ultimately, if the government is unable to use force to enforce its decrees, its decrees mean nothing. If you can’t get the sheriff to come out and evict me from your property or enforce your judgement and do so with the threat of force if I don’t comply, then your court judgement means nothing.

          Go fuck yourself with your judgement, what are you going to do about it? Never do business with me again? Say bad things? Sure you can. But you could do that anyway if I screwed you. What is the point of going to court? The only reason you go to court is to get the government to use the threat of the gun to make me live by my agreements with you. Take away the government’s ability to do that and you take away the entire reason for their being courts and laws.

          1. They do have a declared monopoly on the use of force, though that is not de facto what actually occurs. They might try to parse that by saying a monopoly on the legitimate use of force, but I don’t see anything the least bit legitimate about someone saying they get to rule over me without my consent.

            Take away the government’s ability to do that and you take away the entire reason for their being courts and laws.

            Only if you believe that absent the government imposing courts and laws on us, there will be no courts or laws. Bastiat had some choice words about that.

            1. Only if you believe that absent the government imposing courts and laws on us, there will be no courts or laws

              Stop raping Bastiat. He wasn’t talking about courts and laws. Moreover, if your organization has the ability to use the force of the gun to make me live by its decision such it can lock me in prison or kill me for defying it, it is a government. You can pretend it is something else all you like but that doesn’t change what it is.

              In the end, you have to have some kind of neutral force that settles disputes amongst people and does justice in a systematic and fair way so that individuals are not left to self help to do so. That is government and laws. Calling that something else doesn’t change what it is.

              1. Moreover, if your organization has the ability to use the force of the gun to make me live by its decision such it can lock me in prison or kill me for defying it, it is a government. You can pretend it is something else all you like but that doesn’t change what it is

                Not quite, but close. The difference between a government and their competitors, gangs and mafias and terrorists organization, is that governments have a significant chunk of the population brainwashed into thinking they can legitimately do such thing.

                I would disagree with you that it is always and absolutely, under all circumstances, necessary and inevitable to have some sort of criminal organization to have that kind of power over us. It’s hard to keep such sociopathic organizations at bay, because people tend to crave power, but not inevitable.

                1. It’s hard to keep such sociopathic organizations at bay, because people tend to crave power, but not inevitable.

                  I disagree. Organized violence will always triumph over individuals, and organized violence is the foundation of government. There will always be men who employ organized violence to get their way (it’s easier to plunder than to produce), and when such an organization has eliminated the competition, it becomes government. It’s inevitable.

            2. Government doesn’t have the monopoly on the use of force. It has the monopoly on the initiation of force. Important distinction. I can legally use force to repel a home invasion because it is not an initiation of force.

              Courts are a good thing because they (theoretically) give people a way to resolve disputes without resorting to violence. An argument could be made as to whether or not government is the best way to provide this, but I do think it is an important part of civilized society.

              1. It has the monopoly on the initiation of force. Important distinction. I can legally use force to repel a home invasion because it is not an initiation of force.

                You might want to check the state and local laws in place other than where you live. There’s quite a few places where defending yourself like that could put you in a cage if you didn’t lie a bit about what transpired and get a good lawyer.

                1. In my state if a person is trespassing and committing another crime, like theft or assault or whatever, then the castle doctrine gives me the right to put a hole in their head.

  13. This is your brain. This is drugs. This is your brain on drugs.

  14. http://www.bbc.com/news/entert…..ws_central

    A little more about Joe Cocker dying on us. “Don’t you quit on me!”

    1. Sixties rock and roll is passing from living memory. Remember that the people who really mattered in rock and roll in the 60s were not boomers. They were from the silent generation before the boomers.

      1. They sure made a lot of music for a silent generation.

        1. They are only called “silent” because they were too busy doing shit and didn’t bother to self promote their “generation” like the Boomers did.

          1. *taps John’s sarcasm detector*

            1. It is forever broke.

  15. That the law is titled the “Women’s Right to Know Act” shows that social conservatives are capable of learning and adapting…whodathunkit?

    1. Should be “Women’s Right to Know What They Do Not Care To Know Act”

      1. of course they don’t care to know, because if they had to consider that they are carrying a distinct human life, they might reconsider ending that life

  16. Your lunch time derp: Jeb Bush can win it all!

    “The most important asset Jeb Bush offers is that he is a known commodity, someone who is greatly respected in Republican circles. In this day and age of freewheeling primaries, the comfort level that experience and familiarity provides to potential donors and voters means a lot.”

    http://www.cnn.com/2014/12/22/…..?hpt=hp_t3

    1. What fucking planet do these people live on that Jeb Bush is “greatly respected” or known as anything other than “George Bush’s fat, out of shape brother”?

      1. it translates to “well trained in the art of politics”

    2. “DERP!”

      Yep, certified

    3. If “comfort” means “I’m inclined to vomit,” then, yes, I’m comfortable with Jeb Bush.

      1. I an inclined to vomit on Jeb Bush.

    4. Hopefully, because of some of his “known commodities”, he will be unelectable in the primaries. Also, in the general election.

      THE LAST THING THE COUNTRY NEEDS IS ANOTHER Fu#^$d up Bush.

      We had two. The first was a mess, and the second was a total disaster.

  17. A very good decision One small step in pushing back the anti choice mongrels who are trying to take away abortion rights.

    If it is not your body, it is none of your business, so butt out.

    1. Yes, a human being killed is only ever the business of the ones killing them.

      1. The Beltway libertarians who defend the destruction of unborn life occupy the height of hypocrisy.

        Reminds me of how the “life, liberty, and pursuit of happiness” crowd believed in slavery.

  18. Although ideologically drive, it is informed consent, in that it attacks the the progressive narrative that it’s not a person, it’s not a baby, it’s just a lump of cells. That’s how they sell abortion as acceptable. They wouldn’t fear the ultrasounds if it didn’t expose the lie to at least some women, who would then change their mind on aborting what they then see as their baby.

  19. Re the court’s ruling, Well Said.

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