Amicus Curiae Brief — New York v. Sullivan (Nos. 89-1392, 89-1391)

|} Supreme Court, US *

FILED

Nos. 89-1391, 89-1392 na 77 TS

ANIOL, JR.

CLERK

Crna’

IN THE

Supreme Court of the United Stated”

OCTOBER TERM, 1990

Dr. IRVING RwST, et al.,

ie Petitioners,

Dr. LOUIS SULLIVAN, or his successor,

Secretary of the United States Department

of Health and Human Services,

Respondent.

THE STATE OF NEW YORK, ef? ai.,

. Petitioners,

Dr. LOUIS SULLIVAN, or his successor,

Secretary of the United States Depariment

of Health and Human Services,

Respondent

pod eG. SPO cit,

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF TWENTY-TWO BIOMEDICAL ETHICISTS

AS AMICI CURIAE SUPPORTING PETITIONERS

CATHERINE L. FISK MICHAEL E. FINE

DONOVAN LEISURE, ROGOVIN, DOUGLAS W. SMITH

HUGE & SCHILLER CLYDE SPILLENGER

1250 24th Street, N.W. POWELL, GOLDSTEIN, FRAZER

Washington, D.C. 20037 & MURPHY

(202) 467-8300 1001 Pennsylvania Avenue, N.W

Sixth Floor

Washiiugton, D.C. 20004

(202) 347-0066

Counsel for Amici Curiae

July 27, 1990 * Counsel of Record

EES. Ve er reo nee 6 ES EL eee ey eT: ae

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

SUMMARY OF ARGUMENT |W. 2

eich cccciaaitsiasiniandiessiniadhitineitpniniigaianien 3

I. PATIENTS HAVE A CONSTITUTIONALLY

PROTECTED LIBERTY INTEREST IN

EXERCISING CONTROL OVER THEIR OWN

MEDICAL TREATMENT DECISIONS, AND

THAT INTEREST IS INFRINGED BY THE

TITLE X COUNSELING AND REFFERAL

I io cicicsiintaalachtbintnieptseildelecensented 3

A. Full and Informed Disclosure of Medical

Options Is Integral to the Right of Patients

to “Bodily Integrity” Recognized in Cruzan.. 4

B. The Medical Profession’s Ethical Standards

Embody The Doctrine of Informed Consent

and Embrace a Duty to Counsel Patients on

All Legitimate Treatment Alternatives ........ 6

C. The Right to Complete and Accurate Medical

Advice Is Embodied in State Informed Con-

gh ESET EE tas ee Oe 13

D. The Patient’s Right to Receive from an Ad-

: vising Physician Information Regarding All

Medically Sound Alternatives Applies to

Medical Decisions Relating to Procreation.... 16

E. Title X Restrictions on Counseling and Re-

ferrals Infringe the Liberty Interest of Pa-

tients in Making Informed Medical Deci-

ii

TABLE OF CONTENTS—Continued

Il. NO STATE INTEREST JUSTIFIES THE IN-

FRINGEMENT OF PATIENT LIBERTY IN-

TERESTS CAUSED BY TITLE X COUNSEL-

ING AND REFERRAL REGULATIONS .........

Ill. THE CONSTITUTION PROHIBITS FUND-

ING RESTRICTIONS THAT IMPAIR A PA-

TIENT’S RIGHT TO FULL AND ACCURATE

MEDICAL INFORMATION ..........-----2-------1----0--+

0) FL: | | |) Se

Page

20

iii

TABLE OF AUTHORITIES

Cases:

Akron v. Akron Center for Reproductive Health,

CI oi cecnccccesessonsnnnatncnsccntocens

Archer v. Galbraith, 18 Wash. App. 369, 567 P.2d

EE

Arkansas Writers’ Project, Inc. v. Ragland, 481

RESIS TE ee ee CO

Bartling v. Superior Court, 163 Cal. App. 3d 186,

308 Cal. Retr. 220 (1964) ......................................

Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979) ....

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.),

cert. denied, 409 U.S. 1064 (1972) 2.0000.

Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal.

ESS I

Cruzan v. Director, Missouri Department of Health,

— US. ——, 58 U.S.L.W. 4916 (1990) .....2, 5,

Doe v. Bolton, 410 U.S. 179 (1978) 2.0000.

Dumer v. St. Michael’s Hospital, 69 Wis. 2d 766,

I A SOO

Dunhom v. Wright, 423 F.2d 940 (3d Cir. 1970)...

FCC v. League of Women Voters, 468 U.S. 364

SLES I a

Gates v. Jensen, 92 Wash. 2d 246, 595 P.2d 1155

IEE SE SS MID es Se OS

Harris v. McRae, 448 U.S. 297 (1980) ........0000..

In re Guardianship of Grant, 109 Wash. 2d 545,

EE

Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975)....

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ......

Maher v. Roe, 482 U.S. 464 (1977) ....00000

McPherson v. Ellis, 305 N.C. 266, 287 S.E.2d 892

Ss <n EL eo

Moore v. Preventive Medicine Medical Group Inc.,

178 Cal. App. 3d 728, 223 Cal. Rptr. 859 (1986) ..

Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093

(1960) ... .

Ea EST

Page

17

15

14

13, 21

18

iv

TABLE OF AUTHORITIES—Continued

Page

Planned Parenthood v. Danforth, 428 U.S. 52

TUTE sccccsinnsitinineseptscchdeabisitdlmmiiduidtatdh a iaeidiinidaiddasiggices 17

Rochin v. California, 342 U.S. 165 (1966) _......... a 7

Roe v. Wade, 410 U.S. 113 (19738) ..........000 16

Salgo v. Leland Stanford, Jr. University Board of

Trustees, 154 Cal. App. 2d 560, 317 P.2d 170

Ea Te aS eee ener oe ON ne Le s

Schloendorff v. Society of New York Hospital, 211

se @ FS Ff) | ee oeNeee 13

Schmerber v. California, 384 U.S. 757 (1966)... 7

Schroeder v. Perkel, 87 N.J. 53, 482 A.2d 834

ITED <ciiciasistcipinicelccmnieibieialiaceiitipeiadadiaicat na ia 12,18

Scott v. Bradford, 606 P.2d 554 (Okla. 1980) ........ 15

Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986)... 19

Speiser v. Randall, 357 U.S. 513 (1958) 0.0.0... 23

Thornburgh v. American College of Obstetricians

and Gynecologists, 476 U.S. 747 (1986) ............. 17

Truman v. Thomas, 27 Cal. 3d 285, 611 P.2d 902,

se EF ERE ee 14

Whalen v. Roe, 429 U.S. 589 (1977) ......0000000000.... 18

Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676

ESE SN ES | 2 14

Winston v. Lee, 470 U.S. 753 (1985) -...00000 7

Youngberg v. Romeo, 457 U.S. 307 (1982) ............. 21

Statutes:

Title X of the Public Health Service Act, Pub. L.

No. 91-572, 84 Stat. 1504 (codified as amended

at 42 U.S.C. §§ 300-300a-6 (1989)) 2000000. 3, 4

Cal. Welf. & Inst. Code § 5326.85 (Deering 1990).. 16

N.Y. Pub. Health Law § 2805-d (McKinney 1989)... 16

Or. Rev. Stat. § 486.205 (1989) 2.000. 16

Or. Rev. Stat. § 486.225 (1989) ......020.0 ee. 16

Regulations:

Lek AR | Tee OTE 3, 19, 24

| ED eee See ts 24

v

TABLE OF AUTHORITIES—Continued

Other Authorities:

AMA Policy Compendium: Current Policies of the

AMA House of Delegates Through the 1989 In-

I I eee ae

American College of Obstetricians and Gynecolo-

gists, Standards for Obstetric-Gynecologic Serv-

I a silicic iit i aimcineaiiniitnntbinns

Current Opinions of the Council on Ethical and

Judicial Affairs of the American Medical Associ-

GRD GI cccrncsiictrnsetecctencniainaiqnmicicivinitinnietinead 4, 5,

R. Faden & T. Beauchamp, A History and Theory

of Informed Consent (1986) .................----------------

J. Katz, The Silent World of Doctor and Patient

CN cat ied dinate teat acten iaestsititnisicaniasinibehenbalits

Re I i criinsctncettnnediiinienatianideiaapiinisince

President’s Commission for the Study of Ethical

Problems in Medicine and Biomedical and Be-

havorial Research, Making Health Care Deci-

sions: The Ethical and Legal Implications of

Informed Consent in the Patient-Practitioner

peer 6, 8, 9,

Shultz, From Informed Consent to Patient Choice:

A New Protected Interest, 95 Yale L.J. 219

(1985) deieiibilaessasnitinkassheutaslaisibagadbidaiiadanenaniaaaiadinatibin

Page

10, 11

11, 16

10, 12

14, 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

Nos. 89-1391, 89-1392

Dr. IRVING Rust, et al.,

y. Petitioners,

Dr. LouIs SULLIVAN, or his successor,

Secretary of the United States Department

of Health and Human Services,

Respondent.

THE STATE OF NEW YORK, et al.,

Petitioners,

V.

Dr. LouIs SULLIVAN, or his successor,

Secretary of the United States Department

of Health and Human Services,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF TWENTY-TWO BIOMEDICAL ETHICISTS

AS AMICI CURIAE SUPPORTING PETITIONERS

INTEREST OF AMICI CURIAE *

Amici are a group of 22 physicians, attorneys and

others who teach medical ethics, or who have a major

professional interest in medical ethics. Although the pre-

cise beliefs and practices of the members of this group

* Counsel of record to the parties in this case have consented

to the filing of this brief and letters of consent have been filed

with the clerk pursuant to Rule 37.

2

vary, the members believe that permitting patients to

make important, personal medical decisions in consulta-

tion with their physicians is a fundamental principle of

medical ethics, and that the tradition of unfettered

physician-patient dialogue is central to that principle.

Permitting the government to dictate the medical infor-

mation that can be provided in the doctor-patient dialogue

would undermine principles of medical ethics and com-

promise principles of good patient care and medical prac-

tice to the detriment of patients and physicians alike.

SUMMARY OF ARGUMENT

Patients have a liberty interest in receiving complete

and uncensored information about medical alternatives

when seeking medical advice or counseling. This Court

articulated the liberty interest in bodily integrity in the

recent case of Cruzan v. Director, Missouri Department

of Health. A constituent element of that right and the

doctrine of informed consent is the receipt of full in-

formation about the patient’s medically appropriate op-

tions and the risks related to each.

This liberty interest in full medical disclosure has its

source in both medical ethics and common law precepts

concerning the physician-patient relationship. Under

established law and practice, patients have come to rely

on physicians and other health care professionals for all

medical information necessary to permit them to make

informed decisions about their own health care.

The Title X counseling and referral regulations chal-

lenged in this case infringe this liberty interest. The

imparting of incomplete medical information can pose

serious health dangers to patients. Title X patients are

particularly threatened, because they often have no other

source of medical advice.

There is no government interest justifying this in-

fringement on the patient’s liberty interest. The fact that

the challenged Title X restriction is a condition of federal

funding is constitutionally inconsequential.

3

ARGUMENT

I. PATIENTS HAVE A CONSTITUTIONALLY PRO-

TECTED LIBERTY INTEREST IN EXERCISING

CONTROL OVER THEIR OWN MEDICAL TREAT-

MENT DECISIONS, AND THAT INTEREST IS IN-

FRINGED BY THE TITLE X COUNSELING AND

REFERRAL RESTRICTIONS.

Amici concur in petitioners’ argument that the Title X

regulations restricting abortion-related counseling and

referrals! conflict with Title X of the Public Health

1 Amici’s discussion is directed at the counseling and referral

regulations at issue in this case, 42 C.F.R. § 59.8 (1989), which

provide in pertinent part:

(a)(1) A Title X project may not provide counseling con-

cerning the use of abortion as a method of family planning or

provide referral for abortion as a method of family planning.

(2) Because Title X funds are intended only for family

planning, once a client served by a Title X project is diagnosed

as pregnant, she must be referred for appropriate prenatal

and/or social services by furnishing a list of available pro-

viders that promote the welfare of mother and unborn child.

She must also be provided with information necessary to pro-

tect the health of mother and unborn child until such time as

the referral appointment is kept. In cases in which emergency

care is required, however, the Title X project shall be required

only to refer the client immediately to an appropriate pro-

vider of emergency medical services.

(3) A Title X project may not use prenatal, social service

or emergency medical or other referrals as an indirect means

of encouraging or promoting abortion as a method of family

planning, such as by weighing the list of referrals in favor

of health care providers which perform abortions, by including

on the list of referral providers health care providers whose

principal business is the provision of abortions, by excluding

available providers who do not provide abortions, or by “steer-

ing” clients to providers who offer abortion as a method of

family planning.

(4) Nothing in this subpart shall be construed as prohibit-

ing the provision of information to a project client which is

medically necessary to assess the risks and benefits of differ-

4

Service Act, Pub. L. No. 91-572, 84 Stat. 1504 (codified

as amended at 42 U.S.C. §§ 300-300a-6a (1989)), and

with the first and fifth amendments to the United States

Constitution, and believe that the decision of the court

below must be reversed on these grounds. In addition,

amici believe that these regulations are constitutionally

infirm because they compel physicians anc clinicians to

violate their professional obligations to provide patients

with complete and accurate medical advice, and under-

mine patients’ legitimate expectation that medical ad-

vice will include full disclosure of relevant alternatives,

thus infringing the rights of patients under the due proc-

ess clause of the fifth amendment to the United States

Constitution.

A. Full and Informed Disclosure of Medical Options

Is Integral to the Right of Patients to “Bodily In-

tegrity” Recognized in Cruzan.

The principle that a patient is entitled to complete

disclosure from her physician of the risks of and alter-

natives to medical treatment is basic to medical ethics.

This principle applies from the initiation of medical con-

sultation to a successful medical outcome. It reflects the

established belief that patients should have control over

their own medical treatment decisions, and that patients

consult physicians with the legitimate expectation that

medical advice will be full, frank, and uncensored. Conse-

quently, a cardinal premise of the medical profession is

that “(t]he patient’s right of self-decision can be effec-

tively exercised only if the patient possesses enough in-

formation to enable an intelligent choice... . The physi-

cian has an ethical obligation to help the patient make

choices from among the therapeutic alternatives consistent

with good medical practice.” Current Opinions of the

ent methods of contraception in the course of selectin a

method; provided, that the provision of this information aoes

not include counseling with respect to or otherwise promote

abortion as a method of family planning.

5

Council on Ethical and Judicial Affairs of the American

Medical Association 8.08 (1989) [hereinafter AMA

Current Opinions}.

As noted below, these rights and duties are embodied in

the medical profession’s ethical canons, in the common law

of most states, in the statutes of several states, and in

decisions of this Court. The Title X restrictions on coun-

seling and referrals are flatly inconsistent with these

ethical and legal principles, and would in fact compel

grantees to violate them by denying patients relevant and

necessary medical information.

This Court has strongly intimated that “bodily in-

tegrity” and the right of a patient to exercise control

over her own treatment decisions are basic constitutional

liberties. In Cruzan v. Director, Missouri Department. of

Health, U.S. ——, 58 U.S.L.W. 4916 (1990), the

Court suggested that a person has a cognizable liberty in-

terest in refusing unwanted medical treatment. The Court

in Cruzan stated that “[{t]he principle that a competent

person has a constitutionally protected liberty interest in

refusing unwanted medical treatment may be inferred

from our prior decisions,” * although it recognized that so

significant a constitutional principle should not be defined

without the benefit of a case or controversy to “inform

the inquiry.” Cruzan, 58 U.S.L.W. at 4920. See also id.

(“the logic of the cases .. . would embrace such a liberty

interest”); id. at 4922 (O’Connor, J., concurring) (“I

agree that a protected liberty interest in refusing un-

wanted medical treatment may be inferred from our prior

decisions’).

2 Although portions of the Court’s analysis in Cruzan focused

on the specific situation in which a competent person seeks to

refuse life-sustaining medical treatment, the Court relied vpon

other cases recognizing “a general liberty interest in refusing

medical treatment,” Cruzan, 58 U.S.L.W. at 4920, including Jacob-

son v. Massachusetts, 197 U.S. 11, 24-30 (1905) (recognizing an

individual’s liberty interest in declining an unwanted smallpox

vaccine).

6

As the Court observed in Cruzan, our culture’s recogni-

tion of the patient’s right of self-determination in medical

decisionmaking is expressed in the common-law doctrine

of “informed consent’’—a doctrine the Court described as

“firmly entrenched in American tort law.” 58 U.S.L.W.

at 4918. The informed consent doctrine, however, em-

braces more than the right of a competent patient to

decline medical treatment. It also embraces a patient’s

legitimate expectation of complete disclosure by the physi-

cian of the risks of the recommended course of treatment

and of all reasonable medical alternatives. Indeed, it is

this latter conception that is encompassed hy the word

“informed” in the term “informed consent.” As is illus-

trated below, the informed consent doctrine has come to

include, both in the ethical canons of the healing profes-

sions and in the legal principles governing the rights and

duties of physician and patient, a broad right on the part

of patients to have complete medical information before

their consent to a particular course of medical action can

be regarded as valid. Just as the patient has a liberty

interest in declining unwanted medical treatment, she has

a liberty interest in receiving the complete and uncen-

sored medical information that permits informed medi-

cal decisionmaking.

B. The Medical Profession’s Ethical Standards Em-

body The Doctrine of Informed Consent and Em-

brace a Duty to Counsel Patients on All Legitimate

Treatment Alternatives.

A physician’s duty to provide patients with complete

information is not merely a requirement imposed on

physicians by courts and legislatures.* It emanates from

3 As a recently-convened Presidential Commission has observed,

the informed consent doctrine, in addition to having its foundation

in law, “is essentially an ethical imperative.” 1 President’s Com-

mission for the Study of Ethical Problems in Medicine and Bio-

medical and Behavioral Research, Making Health Care Decisions:

The Ethical and Legal Implications of Informed Consent in the

Patient-Practitioner Relationship 2 (1982) [hereinafter Making

Decisions}.

7

the medical profession’s own ethical imperatives, which

have guided the practice of medicine at least since the

days of Hippocrates. For example, Plato included patient

autonomy in his definition of individual freedom:

The free practitioner who, for the most part, attends

free men, treats their disease by going into things

thoroughly from the beginning in a scientific way,

and takes the patient and his family into his con-

fidence. .. . He does not give his prescriptions until

he has won the patient’s support.

Plato, Laws, 4720b-e.

The doctor-patient relationship described by Plato has

become the model for modern medical ethics based on the

principle of patient autonomy: the patient voluntarily

seeks medical advice or assistance; the doctor assesses the

medical options and discusses them with the patient; and

together they decide upon a course of action, whether it

be treatment or referral to another physician. This rela-

tionship is privileged and confidential in order to protect

the patient’s right to bodily autonomy ‘*—to decide on

his or her medical treatment. The ethical and legal doc-

trine of informed consent has developed in order to foster

and enhance the doctor-patient discussion and facilitate

the process of shared decisionmaking essential to a pa-

tient’s ability to make knowledgeable medical choices.

The principle of medical disclosure, while always

oriented to the patient’s best interests, has evolved over

4The right to bodily autonomy, referred to in Cruzan and dis-

cussed below, has been recognized in other contexts by this Court

as a constitutionally protected liberty interest. See, e.g., Winston

v. Lee, 470 U.S. 753 (1985) (fourth amendment prohibits forced

surgery unless state has more substantial justification than tra-

ditional probable cause); Schmerber v. California, 384 U.S. 757

(1966) (fourth amendment requires more than probable cause to

justify extrae “« blood without defendant’s consent); Rochin v.

California, 542 U.c. 165 (1952) (due process prohibits forced

stomach pumping).

8

time. At one time, medical ethics followed a therapeutic

model which countenanced departures from full disclosure

if such disclosure was deemed inimical to a patient’s best

medical interests. See Salgo v. Leland Stanford, Jr. Uni-

versity Board of Trustees, 154 Cal. App. 2d 560, 578, 317

P.2d 170, 181 (1957) (“[I]n discussing the element of

risk a cetrain amount of discretion must be employed

consistent with the full disclosure of facts necessary to

an informed consent.’”’) See generally R. Faden & T.

Beauchamp, A History and Theory of Informed Consent

74-88 (1986). More recently, this paternalistic approach

has given way to an autonomy model, which for the most

part disavows the notion that restrictions on disclosure

can be in the patient’s best medical interests. See I Mak-

ing Decisions, supra, at 32-39 (discussing the shift from

“medical paternalism” to “patient sovereignty’’).

The primacy of patient autonomy and the related

duty of the doctor to encourage such autonomy was first

expressed in a 1960 decision in which the Kansas Supreme

Court observed that:

Anglo-American law starts with the premise of

thorough-going self-determination. It follows that

each man is considered to be master of his own

body, and he may, if he be of sound mind, expressly

prohibit the performance of life-saving surgery, or

other medical treatment. A doctor might well be-

lieve that an operation or form of treatment is de-

sirable or necessary but the law does not permit him

to substitute his own judgment for that of the pa-

tient by any form of artifice or deception. (Empha-

sis supplied)

Natanson v. Kline, 186 Kan. 393, 406-07, 350 P.2d 1093,

1104 (1960).

Today, there is a clear societal consensus that patients

have an inherent right to exercise choice in medical deci-

sionmaking, and that physicians have a corresponding

y

obligation to provide information on alternatives neces-

sary to permit patients to make fully informed choices.

The physician-patient relationship, which is private by

nature, especially requires openness and freedom to dis-

cuss treatment options frankly. As repeatedly noted in

the standard medical ethical texts, “[e]thically valid con-

sent is a process of shared decisionmaking based upon

mutual respect and participation, not a ritual to be

equated with reciting the contents of a form that details

the risks of particular treatments.” 1 Making Decisions,

supra, at 2. In order to make decisions about their care,

patients “must have all relevant information regarding

their condition and alternative treatments.” /d.

The ethical foundation of the modern doctrine of in-

formed consent is personal autonomy and self-determina-

tion.’ Id. at 44-51. This foundation has been well de-

scribed by Professor Shultz:

Individuality and autonomy have long been central

values in Anglo-American society and law. In gen-

eral, the more intense and personal the consequences

of a choice and the less direct or significant the im-

pact of that choice upon others, the more compelling

the claim to autonomy in the making of a given

decision. Under this criterion, the case for respect-

ing patient autonomy in decisions about health and

bodily fate is very strong.

Shultz, From Informed Consent to Patient Choice: A

New Protected Interest, 95 Yale L.J. 219, 220 (1985)

(footnotes omitted). See also Dworkin, Autonomy and

Informed Consent, in 3 Making Decisions, supra, at

63-81.

5 A patient’s right to complete and candid medical advice is also

founded on the related ethic of promoting personal well-being.

Full disclosure fosters personal well-being by giving each patient

an opportunity to select the course of treatment that best satisfies

his or her own complex set of preferences, rather than relying on

the physician’s speculation about what would be optimal for the

patient. 1 Making Decisions, supra, 42-44.

10

The medical ethic underlying the informed consent

doctrine also is expressed in the American Medical As-

sociation’s “Principles of Medical Ethics,” which pro-

vide with respect to informed consent that:

(T}he patient’s right of self-decision can be effec-

tively exercised only if the patient possesses enough

information to enable an intelligent choice. The pa-

tient should make his own determination on treat-

ment. The physician’s obligation is to present the

medical facts accurately to the patient or to the

individual responsible for his care and to make

recommendations for management in accordance with

good medical practice. The physician has an ethical

obligation to help the patient make choices from

among the therapeutic alternatives consistent with

good medical practice.

AMA Current Opinions, supra, at $8.08 (emphasis

supplied) ; see also id. at {8.12 (requiring physician to

“properly inform the patient of the diagnosis and of

the nature and purpose of the treatment undertaken or

prescribed. The physician may not refuse to so inform

the patient.”). AMA policy likewise provides that health

care professionals should inform patients of alternative

treatments and the related risks: “Full disclosure is ap-

propriate in all cases, except in rare situations in which

such information would, in the opinion of the health

care professional, cause serious harm to the patient.” °

AMA Policy Compendium: Current Policies of the AMA

House of Delegates Through the 1989 Interim Meeting

{ 32.007(1) (1990).

* As suggested by the quotation in the text, the ethical principle

of disclosure is qualified only in certain limited circumstances. The

AMA Principles provide that: “[i]nformed consent is a basic so-

cial policy for which exceptions are permitted (1) where the pa-

tient is unconscious or otherwise incapable of consenting and harm

from failure to treat is imminent; or (2) when risk-disclosure

poses such a serious psychological threat of detriment to the patient

as to be medically contraindicated.” AMA Current Opinions, supra,

at 32.

11

AMA guidelines further emphasize the specia! impor-

tance of ensuring a full exchange of information in

ethically sensitive situations. The guidelines provide that

“W]hen making treatment decisions that involve ethical

choices, health care professionals and patients (or their

authorized representatives) should strive for a high level

of mutual understanding and shared decisionmaking.” /d.

at {| 32.008(1). |

These same ethical standards guide the American Col-

lege of Obstetricians and Gynecologists, which provides in

its Standards for Obstetric-Gynecologic Services that:

[i]t is the physician’s responsibility to inform the

patient of the nature of the surgical or medical

procedure being recommended. In most cases, the

explanation should encompass the nature of the con-

dition or illness that requires medical or surgical

intervention, the recommended course of treatment

and its alternatives, the risks and potential complica-

tions of the treatment, and its relative chances of

success.

American College of Obstetricians and Gynecologists,

Standards for Obstetric-Gynecologic Services 88-89 (7th

ed. 1989) [hereinafter ACOG Standards|. The ACOG

Standards further provide that a “patient should have

an adequate opportunity to ask questions in order to

ensure that she understands the information.” 7d.

Importantly, a physician’s obligation to provide pa-

tients with information needed to ensure informed con-

sent applies even if the physician has only been con-

sulted for advice or diagnosis and will ultimately refer

the patient to another health care provider for the actual

medical treatment. Indeed, the American College of Ob-

stetricians and Gynecologists standard quoted above re-

fers to “recommended” treatment and does not pre-

suppose that the physician will ultimately perform the

procedure elected by the patient. If a physician per-

forming even limited diagnostic and counseling services

12

becomes aware of medical facts or conditions that should

be discussed with a patient the physician has an ethical

responsibility to share that information with the patient

even if another doctor will ultimately perform any addi-

tional therapy or treatment the patient chooses to un-

dergo. See AMA Current Opinions, supra, at { 3.05 (“a

physician may choose to limit his practice to certain diag-

nostic services, [but] he may not neglect a patient under

his care’) .'

In sum, reflecting prevailing standards of human au-

tonomy and dignity, the medical profession has incorpo-

rated into its ethical canons a broad right on the part

of patients to make medical treatment decisions based

on complete disclosure of medical risks and alternatives.

While these canons are not themselves sources of state

law or constitutional rights, they are the strongest kind

7 Courts have recognized a related legal duty to disclose informa-

tion relevant to procreation decisions, whether or not a physician

will even be invoked in providing the relevant medical service. For

example, in Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981), the

New Jersey Supreme Court held that pediatricians had a duty to dis-

close to parents the fact that their first child had cystic fibrosis and

that any potential future children might be born with that con-

dition as well. Even though the pediatricians would not have pro-

vided the pregnancy care themselves, the court found that the

parents had a cause of action against them for failing to provide

them with sufficient information to make an informed choice about

whether to bear a second child. Similarly, in Dumer v. St. Michael’s

Hospital, 69 Wis. 2d 766, 233 N.W. 2d 372 (1975), the Wisconsin

Supreme Court held that the doctor had a duty to inform his preg-

nant patient that she had rubella and that she risked giving birth

to a baby with congenital defects, so she could’ choose whether to

give birth or not. The fact that the doctor was not her obstetrician

was not relevant.

A physician’s duty to disclose also extends to referral to other

health care providers for additional treatment if necessary. For

example, in Moore v. Preventive Medicine Medical Group Inc., 178

Cal. App. 3d 728, 223 Cal. Rptr. 859 (1986), a California court

found that the doctor had a duty to disclose the risk of not being

examined by a specialist.

13

of evidence that a patient’s stake in the exercise of a

medical choice, based on full disclosure by physician to

patient, constitutes a liberty interest that the govern-

ment may not summarily and arbitrarily extinguish.

C. The Right to Complete and Accurate Medical Ad-

vice Is Embodied in State Informed Consent Law.

The legal doctrine of informed consent reflects stand-

ards of disclosure and openness in the physician-patient

dialogue that are rooted in history and in the medical

profession’s ethical precepts. The evolution of this doc-

trine also illustrates the central role of patient autonomy

in the medical decisionmaking process.

As this Court observed in Cruzan, the doctrine of in-

formed consent “has become firmly entrenched in Ameri-

ean tort law.” 58 U.S.L.W. at 4818. By holding physi-

cians accountable for failing to apprise patients of the

risks attending and alternatives to a particular medical

option, state informed consent law affirms the profes-

sion’s own ethical standards and explicitly recognizes the

right of patients to receive full information necessary

to make informed decisions about the medical treatment

they will, or will not, undergo.

The seminal judicial articulation of the informed con-

sent principle is widely regarded to be Justice Cardozo’s

statement in Schloendorff v. Society of New York Hos-

pital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914),

quoted in Cruzan, 58 U.S.L.W. at 4917, that “[e]very

human being of adult years and sound mind has a right

to determine what shall be done with his body; and a

surgeon who performs an operation without his patient’s

consent, commits an assault, for which he is liable in

damages.” While Schloendorff and other early cases an-

nouncing the informed consent doctrine were more con-

cerned with the problem of unwanted treatment forced

on the unconsenting (and often unaware) patient than

with the uninformed or inadequately advised patient,

14

they were instrumental in defining the legal duty of

physicians to respect and to foster their patients’ au-

tonomy. See generally R. Faden & T. Beauchamp, supra,

at 123-25.

As of this writing, all but three states have explicitly

recognized that a patient’s consent cannot be valid unless

she has full knowledge of the risks of the particular

form of treatment and of legitimate alternatives to that

treatment. See 3 Making Decisions, supra, at 193 & n.4.

A review of state law demonstrates that the duty of

physicians to disclose extends not only to the risks as-

sociated with a particular medical treatment but also

to the existence of medical alternatives to that treat-

ment. By failing adequately to notify a patient of avail-

able treatment alternatives, the physician in effect fails

to divulge sufficient information for the patient to make

an intelligent choice.

That the duty to disclose applies not only to risks *

but also to medical alternatives was made explicit by the

U.S. Court of Appeals for the D.C. Circuit in Canterbury

v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409

U.S. 1064 (1972). In considering the duty owed to a

patient paralyzed following a back operation who had not

5’ Early cases focused on the duty to inform about the risks of

a proposed treatment. See, e.g., Cobbs v. Grant, 8 Cal. 3d 229, 502

P.2d 1, 104 Cal. Rptr. 505 (1972) (duty to inform patient of

known risks of a surgical procedure); Truman v. Thomas, 27 Cal.

3d 285, 298-301, 611 P.2d 902, 905-08, 165 Cal. Rptr. 308, 320-22

(1980) (duty to inform of danger of failing to undergo pap

smear) ; Natanson v. Kline, 186 Kan. at 409-10, 350 P.2d at 1103-07

(1960) (duty to disclose possible risks and consequences of radia-

tion therapy); McPherson v. Ellis, 305 N.C. 266, 270-73, 287

S.E.2d 892, 895 (1982) (duty to inform patient of paralysis risk of

arteriogram) ; Wilkinson v. Vesey, 110 R.I. 606, 619-30, 295 A.2d

676, 685-90 (1972) (duty to disclose risks of radiation therapy) ;

Gates v. Jensen, 92 Wash. 2d 246, 251, 595 P.2d 1155, 1159-61

(1979) (duty to disclose all facts physician “knows or should know

which the patient needs in order to make the decision” regarding

medical alternatives including in “nontreatment situations”).

15

been warned in advance of this risk, the D.C. Cireuit

observed:

The root premise is the concept, fundamental in

American jurisprudence, that “[e] very human being

of adult years and sound mind has a right to deter-

mine what shal! be done with his own body. Fg

True consent to what happens to one’s self is the

informed exercise of a choice, and that entails an

opportunity to evaluate knowledgeably the options

available and the risks attendant upon each. The

average patient has little or no understanding of

the medical arts, and ordinarily has only his physi-

cian to whom he can look for enlightenment with

which to reach an intelligent decision. From these

almost axiomatic considerations springs the need,

and in turn the requirement, of a reasonable divul-

gence by physician to patient to make such a decision

possible. (emphasis supplied)

464 F.2d at 780 (quoting Schloendorff, supra, 211 N.Y.

at 129-30, 105 N.E. at 93) (footnote omitted).

Similarly, in Scott v. Bradford, 606 P.2d 554, 556-59

(Okla. 1980), the Oklahoma Supreme Court held that

the doctor had a duty to disclose not only the risks of

hysterectomy surgery but also that there were alterna-

tives to this surgery. Relying on Canterbury v. Spence,

the Court emphasized that a patient’s consent is mean-

ingful only when she is given full information about

her medical options: “[t]rue consent to what happens to

one’s self is the informed exercise of a choice. This en-

tails an opportunity to evaluate knowledgeably the op-

tions available and the risks attendant upon each.” Id.

at 557 (emphasis supplied). See also Dunham v. Wright,

423 F.2d 940, 943-46 (3d Cir. 1970) (holding that under

Pennsylvania law, patient is entitled to full disclosure

of risks and alternatives to surgery); Archer v. Gal-

braith, 18 Wash. App. 369, 567 P.2d 1155 (1977) (hold-

ing that physician must inform patients of alternatives

to thyroid surgery).

16

A number of states have by statute explicitly codified

the scope of a doctor’s duty to disclose both the risks of

and alternatives to a proposed course of treatment. For

example, New York defines lack of informed consent as

“the failure of the person providing the professional

treatment or diagnosis to disclose to the patient such

alternatives as a reasonable medical . . . practitioner

under similar circumstances would have disclosed, in a

manner permitting the patient to make a knowledgeable

evaluation.”” N.Y. Pub. Health Law § 2805-d (McKinney

1989). Other statutes mandate disclosure for specific

medical procedures. See, e.g., Cal. Welf. & Inst. Code

$ 5326.85 (Deering 1990) (electroconvulsive therapy) ;

Or. Rev. Stat. $$ 436.205, 436.225 (1989) (steriliza-

tion). See generally 3 Making Decisions, supra, 204-51

(deseribing each state’s statutes and/or case law on

informed consent).

D. The Patient’s Right to Receive from an Advising

Physician Information Regarding All Medically

Sound Alternatives Applies to Medical Decisions

Relating to Procreation.

A physician’s duty to advise a patient of available

treatment options applies to all medical treatment deci-

sions, including those involving procreation. In particu-

lar, whether or not to continue a pregnancy is such a

medical treatment decision.

As this Court observed in Roe v. Wade, 410 U.S. 113,

165-66 (1973), the decision whether to terminate a preg-

nancy is “inherently, and primarily, a medical decision.”

The ACOG Standards accordingly provide:

In the event of an unwanted pregnancy, the physi-

cian should counsel the patient about her options:

(1) continuing the pregnancy to term and keeping

the infant, (2) continuing the pregnancy to term

and offering the infant for legal adoption, or (3)

aborting the pregnancy.

17

ACOG Standards, supra, at 62. That the abortion pro-

cedure may be a controversial one, or that some physi-

cians may be opposed to performing it, does not change

the fact that abortion is a legitimate medical procedure

that is generally regarded as medically indicated under

certain circumstances. As such, the same disclosure ob-

ligations apply to abortion as to any other legitimate

medical alternative.®

ACOGQ’s reference to “counseling” is particularly sig-

nificant. As this Court repeatedly has recognized in con-

sidering the constitutionality of state laws regulating

abortion, physicians must be free to provide their pa-

tients with full, accurate and medically appropriate

counseling. Thus, for example, in Thornburgh v. Amer-

ican College of Obstetricians and Gynecologists, 476 U.S.

747 (1986), the Court struck down a Pennsylvania stat-

ute that compelled physicians to provide various kinds of

information to a woman prior to receiving her consent

‘o terminate a pregnancy. The Court characterized the

statute’s requirements, which it regarded as “the anti-

thesis of informed consent,” 476 U.S. at 764, as “nothing

less than an outright attempt to wedge [ Pennsylvania’s|

message discouraging abortion into the privacy of the

informed-consent dialogue between the woman and her

physician.” 476 U.S. at 762. Similarly, in Akron v.

Akron Center for Reproductive Health, Inc., 462 US.

416, 443 (1983), the Court observed that “[i]t remains

primarily the responsibility of the physician to ensure

‘hat appropriate information is conveyed to his patient,

depending on her particular circumstances.” See also

Planned Parenthood v. Danforth, 428 U.S. 52, 67 n.8

*Cf. Bartling v. Superior Court, 163 Cal. App. 3d 186, 195, 209

Cal. Rptr. 220 (1984) (hospital required to withdraw life support

system, notwithstanding moral objections) ; In re Guardianship of

Grant, 109 Wash. 2d 545, 567 n.6, 747 P.2d 445, 456 n.6 (1988)

(physician may nct frustrate patient’s choice of a legitimate alter-

native because of moral objections, but instead is obligated to refer

patient to another physician who may provide treatment).

18

(1976); Whalen v. Roe, 429 U.S. 589, 604 n.33 (1977);

Doe v. Bolton, 410 U.S. 179, 192 (1978).

These cases do more than adumbrate the scope of the

onstitutional right to privacy. They explicitly recognize

*e conscitutional importance of full and unregulated com-

munication between doctor and patient in the abortion

context. Indeed, in both Akron and Thornburgh this

Court distinguished sharply between state law restrictions

‘at would promote fuil and accurate medical advice and

those that would inhibit such advice. Akron, 462 U.S. at

445-47; Thornburgh, 476 U.S. at 759-65. The Title X

counseling and referral restrictions at issue inhibit rather

than promote informed decisionmaking; they explicitly

limit the information and medical choice available to

patients.

In addition to the decisions of this Court, there ar>

numerous state court decisions in which information re

garding pregnancy and childbirth have been deemed to be

within a physician’s duty to disclose. For example, in

Berman v. Allan, 80 N.J. 421, 431-33, 404 A.2d 8, 138-15

(1979), the New Jersey Supreme Court found a physi-

cian liable for failing to inform parents of a child born

with Down’s Syndrome of the amniocentesis procedure

that would have detected the condition at a time when

the pregnancy could have been aborted. Later, in Schroe-

der v. Perkel, supra, the same court held that a doctor

who had failed to disclose to his patient that her first

child had cystic fibrosis and that there was a high risk

that additional children might have the disease could be

sued when the patient’s second child was born with the

disease. In both cases, the New Jersey Supreme Court

emphasized the physician’s duty to provide information

that would have affected the mother’s decision whether to

respond to a pregnancy by the alternative of childbirth

or abortion.”

10 See also Phillips v. United States, 566 F. Supp. 1 (D.S.C.

1981) (United States liable in tort for failure of staff at navy

19

E. Title X Restrictions on Counseling and Referials

Infringe the Liberty Interest of Patients in Making

Informed Medical Decisions.

It is undisputed that the Title X regulations governing

counseling and referrals interfere with the ability of

physicians in Title X projects to disclose relevant medical

information to their patients, and the corresponding lib- |

erty interest of the patients to receive that information.

The retulations prohibit physicians at Title X projects

even from mentioning abortion as a medical treatment or

from identifying providers of abortion services. See 42

C.F.R. § 59.8(a) (1) (projects “may not provide counsel-

ing concerning the use of abortion as a method of family

planning’); id. at §59.8(a)(3) (prohibiting Title X

projects from providing referral lists including “health

care providers whose principal business is the provision

of abortion’’).

In some cases, the bar against providing full medical

information to patients will put patients at serious med-

ical risk. To take only the most obvious example, preg-

nant women with certain complicating conditions (such

as diabetes, hypertension, and cancer) may face serious

health risks if they continue the pregnancy. See Brief

Amici Curiae of the American College of Obstetricians

and Gynecologists et al., Rust v. Sullivan (Nos. 89-1391,

89-1392). Yet, counseling with respect to pregnancy ter-

mination would be precluded by the regulations in such

medical hospital to give adequate genetic counseling to pregnant

patient who subsequently gave birth to infant with Down’s Syn-

drome); Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986)

(holding doctor liable for negligent failure to disclose rubella in

pregnant mother, where child was born with congenital deformities

and mother would have had an abortion had she known of risk of

birth defects caused by rubella during pregnancy); Jacobs v.

Theimer, 519 S.W.2d 846 (Tex. 1975) (same); Dumer v. St.

Michael’s Hospital, supra (same).

20

eases save when an “emergency” exists. See 42 C.F.R.

§$ 59.8(a)(2)."" Many situations involving such health

risks would not technically satisfy the-definition of “‘emer-

gency,” which is left vague but appears from the exam-

ples in the regulation to be limited to situations like an

ectopic pregnancy. See 42 C.F.R. § 59.8(b) (2).

There are many scenarios in which the Title X regu-

lations would compel a physician to violate his or her

legal and ethical obligations to provide patients facing

particular health risks with full and accurate informa-

tion about medical treatment options. Furthermore, it is

important that the obligation to impart relevant informa-

tion concerning pregnancy options is not limited to cases

involving health risks but rather, as the guidelines of the

American College of Obstetricians and Gynecologists

state, applies to all medical decisions. The Title X reg-

ulations severely restrict such counseling. It would be

difficult to imagine a more flagrant interference with a

patient’s right to accurate and complete information.'”

Il. NOSTATE INTEREST JUSTIFIES THE INFRINGE-

MENT OF PATIENT LIBERTY INTERESTS

CAUSED BY TITLE X COUNSELING AND RE-

FERRAL REGULATIONS.

Once a “liberty interest” under the due process clause

has been established, “whether [a party’s] constitutional

rights have been violated must be determined by balanc-

11 The regulations provide that “[i]n cases in which emergency

care is required, however, the Title X project shall be required only

to refer the client immediately to an appropriate provider of med-

ical services.” Id.

12 That health care professionals working at Title X projects

would not themselves perform medical procedures does not make

the counseling prohibition any less intolerable. As discussed above, a

physician’s failure properly to counsel or to refer patients on whom

a medical procedure ultimately will or should be performed by

another is inconsistent with standards of informed consent.

21

ing his liberty interests against the relevant state inter-

est.” Cruzan, 58 U.S.1.W. at 4920 (quoting Youngberg

v. Romeo, 457 U.S. 307, 321 (1982)). This analysis, in

turn, depends on the interests asserted by the govern-

ment. The government cannot identify a state interest

sufficient to justify withholding from patients medically

necessary information.

The government has not to this point argued that, as a

general matter, patients are better off with incomplete

medical information. Nor has the agency suggested that

it has an especially compelling interest in denying infor-

mation only to poor women, who are the principal bene-

ficiaries of Title X assistance. The sole governmental in-

terest offered in support of the counseling and referral

regulations is the government’s wish to promote child-

birth and discourage abortion. This asserted interest is

insufficient to justify so severe an infringement of pa-

tient interests in full disclosure of medical options.

By restricting the advice and information that physi-

cians can legally provide to their patients, the Title X

counseling and referral regulations seriously impair pa-

tient’s rights to full and accurate medical information

and make it virtually impossible for them to give their

informed consent. Through the Title X program, the

Department of Health and Human Services (HHS) es-

tablishes physician-patient relationships. By initiating

such a relationship of trust and then barring the physi-

cian from providing full information, the government

creates new obstacles to the patient’s exercise of her right

to make informed medical decisions. First, in the medi-

eal doctor-patient relationship, the patient places ultimate

trust in the quality of the information received from the

physician, and relies on that information being complete.

See J. Katz, The Silent World of Doctor and Patient 142-

47 (1984). Moreover, because patients in the Title X

projects generally have no other source of professional

medical advice, they are especially reliant on receiving

full disclosure.

22

The Title X regulations are in fact so intrusive that

they verge on constituting intentional deception. To a

substantial degree, the advice poor women receive and

rely upon will be that of the federal government, not the

independent medical judgment of their doctor. This turns

traditional notions of the inviolability of the doctor-

patient relationship on their head. Worse yet, in many

cases, patients will not realize that they have been given

incomplete information.

There is no precedent for prohibiting the flow of infor-

mation concerning any treatment—whether it be abortion,

antibiotics, or surgery—that is generally regarded as

medically indicated under appropriate circumstances and

whose performance is legal under those circumstances.

While the government may assert a variety of interests

to support various types of regulation of individual medi-

cal decisions, a baseline constitutional principle should be

this: There is no substantial governmental interest in

limiting medical information about medical procedures

that are regarded as legitimate under prevailing medical

standards. The government’s claimed interest in this case

simply does not support its heavy-handed imposition of

restrictions on counseling and referral, when weighed

against a patient’s fundamental liberty interest at stake.

Ill. THE CONSTITUTION PROHIBITS FUNDING RE-

STRICTIONS THAT IMPAIR A PATIENT’S RIGHT

TO FULL AND ACCURATE MEDICAL INFORMA-

TION. |

As the foregoing demonstrates, the federal government

may not constitutionally intrude upon the sanctity of the

physician-patient relationship by directly prohibiting

physicians and health care professionals from informing

their patients about all their valid treatment options.

It is equally true that the Constitution bars indirect gov-

ernmental efforts to reach this same result.

23

The government has argued that the Title X regulations

are not subject to constitutional constraints because Title

X is merely a funding program and does not directly

regulate private conduct. But as this Court has repeat-

edly observed, “even though a person has no ‘right’ to a

valuable government benefit and even though the govern-

ment may deny him the benefit for any number of rea-

sons, there are some reasons upon which the government

may not act. It may not deny a benefit to a person on a

basis that infringes his constitutionally protected inter-

ests ....” Perry v. Sindermann, 408 U.S. 593, 597

(1972). See also Speiser v. Randall, 357 U.S. 513 (1958).

Contrary to this established precedent, the Second Cir-

cuit concluded that the Title X counseling and referral

restrictions could be sustained under authority of Maher

v. Roe, 432 U.S. 464 (1977), and Harris v. McRae, 448

U.S. 297 (1980). We disagree for two reasons. First,

from a first amendment perspective, there can be little

question that the Title X regulations constitute an im-

permissible viewpoint-based restriction on speech. The

regulations specifically target speech “concerning the use

of abortion as a method of family planning,” 42 C.F.R.

§ 59.8(a) (1), and, as such, fall afoul of the Constitution.

See, e.g., Arkansas Writers’ Project, Inc. v. Ragland, 481

U.S. 221 (1987); FCC v. League of Women Voters, 468

U.S. 364 (1984).%

Second, when seen in the light of the doctrine of in-

formed consent and patient liberty interests in full

medical disclosure, the Title X counseling and referral

restrictions far exceed anything approved in Maher or

McRae. Both Maher and McRae involved cases in which

the federal government adopted a passive position, choos-

ing not to support particular conduct or speech. But in

18 We concur with, and defer to, the more comprehensive treat-

ment of this issue in briefs filed by petitioners and other amici in

support of petitioners.

24

this case, HHS has affirmatively intervened in doctor-

patient relationships to the detriment of the patients."

The saving distinction drawn in Maher was between

“direct state interference with a protected activity and

state encouragement of an alternative activity consonant

with legislative policy.” 432 U.S. at 475 (footnote

omitted). Similarly, in McRae the court observed that

“although government may not place obstacles in the

path of” an individual’s exercise of constitutional rights,

“it need not remove those not of its own creation.” 448

U.S. at 316.

In sharp contrast to these cases, Title X counseling and

referral regulations constitute a “direct state interference

with a protected activity.” These regulations do not

merely favor childbirth over abortion. They require phy-

sicians to give partial, misleading medical information

in direct contravention of their ethical and legal obliga-

tions, placing at least some patients in a worse position

than if there had been no Title X funding at all. It

therefore cannot be said, in contradistinction to Maher

and McRae, that the regulations leave Title X patients

in “no worse position” than if no funds at all were

provided.

‘* These cases are also distinguishable because they involved only

the use of federal funds, whereas the challenged Title X regulations

affect grantees’ use of state and private funds as well. See 42

C.F.R. § 59.2 (1989) (“Title X project funds include all funds

allocated to the Title X program, including but not limited to grant

funds, grant-related income or matching funds.”). This Court spe-

cifically cautioned in both Maher and McRae that its analysis would

change if funding conditions burdened a recipient’s ability to inde-

pendently exercise her constitutional rights. See Maher, 432 U.S.

at 474 n.8; McRae, 448 U.S. at 317 n.19. .

ttl ee a —

25

CONCLUSION

The restrictions on counseling and referrals constitute

an unprecedented effort by the government to exploit the

traditional trust of the physician-patient relationship in

order to steer needy women’s health care decisions in the

direction of a medical treatment favored by the govern-

ment. In so doing, the government forces physicians and

health care professionals in Title X projects to provide

incomplete and thereby misleading medical advice, and

thus to violate the most basic principles of medical ethics

and common law. The government has no legitimate

countervailing interest in interfering with patients’ recog-

nized liberty interest in making informed medical deci-

sions.

For the foregoing reasons, the judgment of the Court

of Appeals should be reversed.

Respectfully submitted,

CATHERINE L. FISK MICHAEL E. FINE *

DONOVAN LEISURE, ROGOVIN, DOUGLAS W. SMITH

HuGE & SCHILLER CLYDE SPILLENGER

1250 24th Street, N.W. POWELL, GOLDSTEIN, FRAZER

Washington, D.C. 20037 & MURPHY

(202) 467-8300 1001 Pennsylvania Avenue, N.W.

Sixth Floor

Washington, D.C. 20004

(202) 347-0066

Counsel for Amici Curiae

July 27, 1990 * Counsel of Record

APPENDIX

la

APPENDIX

TWENTY-TWO BIOMEDICAL ETHICISTS *

AMICI CURIAE

Frederick R. Abrams, M.D.

University of Colorado at Denver, Denver, CO

George J. Annas, J.D., M.P.H.

Boston University School of Public Health, Boston, MA

Ronald E. Cranford, M.D.

Hennepin County Medical Center, Minneapolis, MN

Rebecca Dresser, J.D.

Case Western Reserve University, Cleveland, OH

Sherman Elias, M.D.

University of Tennessee, Memphis, TN

Janet Fleetwood, Ph.D.

Medical College of Pennsylvania, Philadelphia, PA

Leonard H. Glantz, J.D.

Boston University School of Public Health, Boston, MA

Susan L. Goldberg, J.D.

Widener University School of Law, Wilmington, DE

Jane Greenlaw, J.D.

University of Rochester School of Medicine, Rochester, NY

Jay Katz, M.D.

Yale Law School, New Haven, CT

Carol Levine, Executive Director

Citizens Commission on AIDS, New York, NY

Joanne Lynn, M.D.

George Washington University, Washington, D.C.

Ruth Macklin, Ph.D.

Albert Einstein College of Medicine, Bronx, NY

* Note: Institutional affiliations listed for identification only.

2a

Wendy K. Mariner, J.D., M.P.H.

Boston University School of Public Health, Boston, MA

Donald N. Medearis, Jr., M.D.

Massachusetts General Hospital, Boston, MA

Robert M. Nelson, M.D.

University of California at San Francisco,

San Francisco, CA

Lois LaCivita Nixon, Ph.D., M.P.H.

University of South Florida, Tampa, FL

Rochelle N. Shain, Ph.D.

University of Texas Health Science Center,

San Antonio, TX

Marjorie M. Shultz, M.A.T., J.D.

Boalt Hall School of Law, University of California,

Berkeley, CA

Jeffrey Spike, Ph.D.

University of Rochester School of Medicine, Rochester, NY

Judith P. Swazey, Ph.D., President

The Acadia Institute, Bar Harbor, ME

Herman 8S. Wigodsky, M.D., Ph.D.

University of Texas Health Science Center,

San Antonio, TX