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51 N.M. L. Rev. 70 (2021)
The First Amendment and the Female Listener

handle is hein.journals/nmlr51 and id is 74 raw text is: THE FIRST AMENDMENT AND THE FEMALE LISTENER Loren Jacobson* When the Supreme Court has considered whether laws that affect women's decisions about their health and bodies violate the Free Speech Clause, it has ignored the informational needs of the very women that such laws regulate. I argue that, instead, the Supreme Court should value women's informational and decision-making needs and properly place them at the center of a First Amendment analysis of laws that affect women in particular. Towards that goal, the Supreme Court should take a listener-centered approach to laws that affect women's decision-making. There is a strong basis for a listener-centered approach in the Court's Free Speech precedents, particularly in its commercial speech cases. Following this listener-centered approach would allow the Court to apply the Free Speech Clause in a way that is consistent with these precedents, including the way in which the Court has distinguished speech compulsions and speech restraints. More important, an approach that values the female listener would accord women maximum dignity and autonomy, which is appropriate when laws involve free speech, informed consent, and the decisions women make about their bodies and their health. In National Institute of Family and Life Advocates v. Becerra (NIFLA),1 the Supreme Court found that a California law that required women to be provided information about state coverage for reproductive health care services violated the First Amendment. Yet, in previous decisions, the Court has held that both speech restraints and speech compulsions related to the information women receive about their health care do not violate the First Amendment. In Rust v. Sullivan, the Court held that a regulation restricting the information women can get about their reproductive health care options was constitutional.2 In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court held that a law requiring that women get certain information in the context of informed consent for abortions also did not violate the First Amendment.3 As others have pointed out, the Court's opinions in these cases are not consistent, and in large part the discrepancy can be explained as * Assistant Professor of Law, UNT Dallas College of Law. I would like to thank Professor Brian Owsley and Assistant Dean Peter Alexander of UNT Dallas College of Law and Professor Helen Norton of University of Colorado Law School for their helpful feedback on this article. 1. 138 S. Ct. 2361 (2018). 2. Rust v. Sullivan, 500 U.S. 173 (1991). 3. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). 70

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