Abortion Regulation as Compelled Speech

Abstract

The Article outlines a novel First Amendment compelled speech claim against a growing body of abortion restrictions, including fetal demise and burial laws, premised on a state interest in “expressing respect for potential life.” It weaves Fourteenth Amendment limitations together with developments set out last year in NIFLA v. Becerra to demonstrate that the Court’s expanding First Amendment jurisprudence has made such laws exceptionally vulnerable to a compelled expressive conduct challenge. The Court’s abortion jurisprudence requires all previability life-protective abortion regulations to be expressive. Due to these limitations, where such abortion regulations compel conduct, they compel expressive conduct. They are thus subject to—and often fail—heightened First Amendment scrutiny.

By uclalaw