Abstract
This Article outlines a novel First Amendment compelled speech claim against a growing body of abortion restrictions, including fetal demise and fetal burial laws, premised on a state interest in expressing respect for potential life. It weaves limitations imposed by the Supreme Court’s abortion jurisprudence together with developments set out in NIFLA v. Becerra to demonstrate that the Court’s expanding First Amendment jurisprudence has made such laws uniquely vulnerable to a compelled expressive conduct challenge. This vulnerability results from the fact that the Court’s Fourteenth Amendment abortion jurisprudence requires all previability fetal-protective abortion regulations to be expressive, whether or not they require abortion providers to speak. Due in large part to these Fourteenth Amendment limitations, where life-protective abortion regulations compel conduct, they compel expressive conduct under the First Amendment. These laws are thus subject to heightened scrutiny under the newly rigorous compelled speech framework set out in NIFLA. Laws intended to communicate respect for potential life to people not seeking abortions receive strict scrutiny. Laws targeting women actively seeking abortions, as part of informed consent, are subject to intermediate scrutiny. Many new fetal-protective laws diverge from traditional mediums of informed consent and therefore fail First Amendment scrutiny.
