Paternalistic Disclosures: Of Cigarettes and Abortions

August 30th, 2012

There are two prominent types of disclosure laws that I think receive very, very different treatment.

First, consider disclosure warnings on cigarettes. As a matter of policy (putting aside any First Amendment issues), those in favor of the warnings argue that they will help people become more informed and nudge people to make the right decision (not smoking). Opponents of these laws contend that the warnings are unduly paternalistic–people can choose to smoke even if it may harm them, and these warnings are bad policies. If I may generalize, liberals tend to be in favor of these laws, and take a narrow view of the First Amendment here (at least with respect to commercial speech), while conservatives and libertarians tend to oppose these laws.

Second, consider disclosure warnings related to abortions. There are a whole host of these types of disclosure laws, ranging from requiring doctors to hand out information about abortions (information that may be of dubious accuracy, but let’s just assume for arguments sake that the information is correct) all the way to forcing women to undergo sonograms and watch the results. I’ll focus on the less intrusive ones, that simply require doctors to hand out info. Putting aside any constitutional issues, and viewing this strictly as a matter of policy, those in favor of these laws contend that these laws inform women who may not understand abortions and nudge them towards making better decisions (not having an abortion). Opponents of these laws view these disclosure laws as unduly paternalistic and contend that women should be free to make this choice without being unduly burdened with these warnings.

There is something of a role reversal. Those favoring these disclosure laws tend to be quite conservative, and those opposing them tend to be quite liberal. I find this dichotomy quite intriguing.

Linda Greenhouse has forcefully made the point that disclosure laws concerning abortion are unduly paternalistic, but she has no such concerns about cigarette disclosure laws.

Greenhouse’s frequent co-author Reva Siegel refers to forms of antiabortion legislation as “Gender Paternalism

The new gender paternalism is in fact the old gender paternalism: laws (1) based on stereotypes about women’s capacity and women’s roles that (2) deny women agency (3) for the claimed purpose of protecting women from coercion and/or freeing them to be mothers. Gender paternalism of this kind violates the very forms of dignity that Casey—and the equal protection cases—protect.

This seems to cut against a favored libertarian paternalism–at least when it applies to a favorite constitutional right.

Now, a few anticipatory responses.

The Supreme Court has recognized that abortion is a constitutional right, but has not found  that smoking is a right. (I suppose under the logic of the ACA, such an activity could even be banned because it results in higher health care costs). So these activities are really on different constitutional planes. Laws placing undue burdens on access to abortion may run afoul of Casey. However, cigarette disclosure laws also have a constitutional hook–the First Amendment. The recent litigation in the D.C. Circuit about the attempt to place graphic pictures on packs of cigarettes raises serious free speech issues. Granted this is the weak commercial speech, rather than the favored individual speech.

Another possible point is that other aspects of our Constitution are premised on paternalism. You have a right to remain silent. Do we assume you know this right? Of course not. In fact, we assume you’ll do something stupid. So we have to read you your rights, and if the rights are not read correctly, or are not understood, any evidence obtained is inadmissible. That is quite paternalistic.

Are warnings for cigarettes or abortion of the same kind as Miranda warnings? Miranda warnings inform a person of what rights he or she has, with the aim that they won’t incriminate themselves, thus rendering the right nugatory. In contrast, the disclosure laws do not help a person from waiving his or her constitutional rights. Rather, they just aim to prevent some type of harm (even Roe and Casey recognized that there is some negative societal cost attendant with abortion). With disclosures, giving the warnings may be constitutionally suspect. With Miranda, not giving the warnings is unconstitutional.

I was thinking about this topic earlier this week, and Steve R. sent me this letter to the editor in the Washington Post (apparently people still write things to newspapers):

The Post reported Aug. 25 [“Court upholds ruling against FDA’s cigarette packaging mandate”] that a federal appeals court in Washington has prohibited the Food and Drug Administration from requiring tobacco companies to put factually accurate photos of people harmed by tobacco use on cigarette packages, ruling that doing so violates the free-speech rights of tobacco companies.

Meanwhile, a federal appeals court in St. Louis has upheld a requirement that physicians in South Dakota read a factually inaccurate warning about the dangers of abortion to their patients considering the procedure, saying doing so does not violate the free-speech rights of physicians.

Does the right hand of the federal judiciary know what the left hand is doing, or are the courts now valuing free speech for corporations more highly than free speech for physicians and patients?

I think the letter reaches a similar fork in the road that I do.

I’ll develop this some more in time.