Emw Women's Surgical Ctr. v. Beshear (920 F.3d 421, 2019)

JOHN K. BUSH, Circuit Judge.

Under Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), a woman has the right to choose to have an abortion. To inform that choice, the Commonwealth of Kentucky directs a doctor, before performing an abortion, to auscultate (or make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient. This appeal principally concerns whether those requirements violate the doctor's First Amendment rights.

"The Ultrasound Informed Consent Act," also known as "House Bill 2" or "H.B. 2," is challenged by Plaintiffs-Appellees EMW Women's Surgical Center, P.S.C. and its associated physicians (collectively, "EMW") under the First Amendment, as incorporated against the States by the Fourteenth Amendment. EMW prevailed in the district court, which, in granting the complaint's first claim for relief under the First Amendment, applied heightened scrutiny to invalidate the statute and permanently enjoin enforcement of H.B. 2. See EMW Women's Surgical Ctr., P.S.C. v. Beshear , 283 F.Supp.3d 629 (W.D. Ky. 2017). Our court then denied the motion of then-Defendant-Appellant Vickie Glisson, who was Secretary of the Cabinet for Health and Family Services, to stay the injunction pending appeal. See EMW Women's Surgical Ctr., P.S.C. v. Beshear , No. 17-6151 (6th Cir. Dec. 8, 2017) (order). However, neither our court nor the district court had the benefit of the Supreme Court's recent decision in National Institute of Family & Life Advocates v. Becerra , --- U.S. ----, 138 S.Ct. 2361, 201 L.Ed.2d 835 (2018) (" NIFLA ").

In NIFLA the Court clarified that no heightened First Amendment scrutiny should apply to informed-consent statutes like the abortion-informed-consent statute at issue in Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion). See NIFLA , 138 S.Ct. at 2373. Thus, even though an abortion-informed-consent law compels a doctor's disclosure of certain information, it should be upheld so long as the disclosure is truthful, non-misleading, and relevant to an abortion. See Casey , 505 U.S. at 882, 112 S.Ct. 2791 ; Tex. Med. Providers Performing Abortion Servs. v. Lakey , 667 F.3d 570, 576 (5th Cir. 2012) ; Planned Parenthood Minn., N.D., S.D. v. Rounds , 530 F.3d 724, 734-35 (8th Cir. 2008) (en banc).

Because H.B. 2, like the statute in Casey , requires the disclosure of truthful, nonmisleading, and relevant information about an abortion, we hold that it does not violate a doctor's right to free speech under the First Amendment. See NIFLA , 138 S.Ct. at 2373 ; Casey , 505 U.S. at 882-84, 112 S.Ct. 2791. We also hold that the Attorney General, Defendant-Appellant Andrew Beshear, is not a proper party to this case.

I.

H.B. 2 directs a doctor, prior to performing an abortion, to perform an ultrasound; display the ultrasound images for the patient; and explain, in the doctor's own words, what is being depicted by the images-for example, pointing out organs and whether the patient is pregnant with twins. KRS § 311.727. There is no requirement that the patient view the images or listen to the doctor's description. The doctor also must auscultate the fetal heartbeat but may turn off the volume of the auscultation if the patient so requests. Id. Failure to comply with these requirements can result in the doctor being fined and referred to Kentucky's medical-licensing board. KRS § 311.990(34). But H.B. 2 does not penalize a doctor if the patient requested that the heartbeat sound be turned off or chose not to look at the ultrasound images. KRS § 311.727(3). Nor does H.B. 2 penalize a doctor if she or he exercises discretion to advise a patient that she need not listen to or view the disclosures, or if the doctor makes any other statement, including advising the patient to have an abortion. Finally, a doctor need not make any disclosure from H.B. 2 at all if an abortion is medically necessary or in the case of a medical emergency. KRS § 311.727(5).

EMW sued General Beshear, Secretary Glisson, and Michael S. Rodman, who is Executive Director of the Kentucky Board of Medical Licensure. The parties cross-moved for summary judgment on the complaint's first claim for relief, styled "First Amendment Rights of Physicians." The district court ruled in favor of EMW and, as noted, permanently enjoined enforcement of H.B. 2. Executive Director Rodman does not appeal, but Secretary Meier, as Secretary Glisson's successor, seeks reversal of the judgment. General Beshear also defends H.B. 2 on appeal but argues that he is not a proper party to this case. We address first whether H.B. 2 violates doctors' First Amendment rights, then whether General Beshear is appropriately in this suit.

II.

We engage in de novo review of the district court's summary judgment. McKay v. Federspiel , 823 F.3d 862, 866 (6th Cir. 2016). "[W]here, as here, the parties filed cross-motions for summary judgment, 'the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.' " Id. at 866 (quoting Taft Broad. Co. v. United States , 929 F.2d 240, 248 (6th Cir. 1991) ). A moving party may obtain summary judgment only if it "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

No material facts are in dispute here, so this matter turns on a pure question of law: does H.B. 2 compel a doctor's speech in violation of the First Amendment?

The First Amendment, applicable to the States through the Fourteenth Amendment, see, e.g. , Gitlow v. New York , 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), provides, in pertinent part, that "Congress shall make no law ... abridging the freedom of speech," U.S. Const. amend. I. This constitutional guarantee, the Supreme Court has held, applies not only when government restricts speech, see, e.g. , Reed v. Town of Gilbert , --- U.S. ----, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015), but also when it compels speech, see, e.g. , NIFLA , 138 S.Ct. at 2371. When laws, whether restrictive or compulsive, "target speech based on its communicative content," they generally "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." NIFLA , 138 S.Ct. at 2371 (quoting Reed , 135 S.Ct. at 2226 ). Such content-based restrictions have been declared unconstitutional in compelled-speech cases such as West Virginia State Board of Education v. Barnette , 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), which struck down a requirement that students salute the United States flag; Wooley v. Maynard , 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), which invalidated a law requiring a state motto "Live Free or Die" on license plates; and Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston , 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), which held that a State could not force parade organizers to include a group that would convey a message contrary to the organizers' views.

Heightened scrutiny generally applies to content-based regulation of any speaker, including a physician or other professional. See NIFLA , 138 S.Ct. at 2371-72. But, as the Supreme Court noted in NIFLA , there is "less protection for professional speech in two circumstances": first, for "some laws that require professionals to disclose factual, noncontroversial information in their 'commercial speech' "; second, for regulation of "professional conduct, even though that conduct incidentally involves speech," id. at 2372 (citing Casey , 505 U.S. at 884, 112 S.Ct. 2791 ). The second exception is at issue here because H.B. 2 regulates doctors' conduct: performing abortions.

We review H.B. 2 against the backdrop of thirty-five years of evolving Supreme Court precedent concerning the constitutionality of abortion-informed-consent statutes. In the 1980s, the Court invalidated some aspects of these laws. For example, in City of Akron v. Akron Center for Reproductive Health, Inc. , 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (" Akron I "), and Thornburgh v. AmericanCollege of Obstetricians & Gynecologists , 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), the Court struck down state laws requiring abortion doctors to provide patients with information about the development of unborn life and alternatives to abortion. In Akron I , the Court "invalidated an ordinance which required that a woman seeking an abortion be provided by her physician with specific information 'designed to influence the woman's informed choice between abortion or childbirth.' " Casey , 505 U.S. at 881, 112 S.Ct. 2791 (quoting Akron I , 462 U.S. at 444, 103 S.Ct. 2481 ). The required disclosure included the statement that "the unborn child is a human life from the moment of conception." Akron I , 462 U.S. at 444, 103 S.Ct. 2481. That this "information was designed to dissuade the woman from having an abortion," Casey , 505 U.S. at 882, 112 S.Ct. 2791, was one of "two purported flaws in the Akron ordinance." Id. (citing Thornburgh , 476 U.S. at 762, 106 S.Ct. 2169 ). The other purported flaw was that the Akron I statute mandated "a rigid requirement that a specific body of information be given in all cases, irrespective of the particular needs of the patient, [that] intrude[d] upon the discretion of the pregnant woman's physician." Thornburgh , 476 U.S. at 762, 106 S.Ct. 2169 ; see also Casey , 505 U.S. at 882, 112 S.Ct. 2791. In Thornburgh , the purported flaw in the Pennsylvania informed-consent statute at issue was that it was "an outright attempt to wedge the Commonwealth's message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician," Thornburgh , 476 U.S. at 762, 106 S.Ct. 2169 -that is, an interference with the doctor-patient relationship.

In the early 1990s, the Supreme Court reversed course. In Casey , the Court effectively abrogated the holdings in Akron I and Thornburgh . The Casey joint opinion declared:

To the extent Akron I and Thornburgh find a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the "probable gestational age" of the fetus, those cases go too far, are inconsistent with Roe 's acknowledgment of an important interest in potential life, and are overruled.

Casey , 505 U.S. at 882, 112 S.Ct. 2791 (emphasis added) (internal quotation marks omitted). Casey addressed informed-consent provisions of another Pennsylvania statute that required physicians, among other things, to inform patients orally of the nature of the abortion procedure; its risks and alternatives; the probable gestational age of the unborn life in the patient when the doctors would perform the abortion; and the availability of pamphlets (1) describing unborn life in further detail, including stages of gestational development, (2) listing agencies offering alternatives to abortion, and (3) giving information about obtaining child support from the unborn life's father. See Casey , 505 U.S. at 881, 902-03, 112 S.Ct. 2791 (quoting 18 Pa. Cons. Stat. § 3205(a) ); Planned Parenthood of Se. Pa. v. Casey , 744 F.Supp. 1323, 1349 (E.D. Pa. 1990) (noting that pamphlets described stages of development for unborn life).

The Casey plurality reasoned that "a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion is, for constitutional purposes, no different from a requirement that a doctor give certain specific information about any medical procedure." Casey , 505 U.S. at 884, 112 S.Ct. 2791. Though the joint opinion acknowledged that "the physician's First Amendment rights not to speak" were implicated by the informed-consent statute, the plurality applied no heightened scrutiny and upheld the statute because a doctor's rights were implicated "only as part of the practice of medicine, subject to reasonable licensing and regulation by the State." Id. at 884, 112 S.Ct. 2791 (citations omitted).

Importantly too, in "depart[ing] from the holdings of Akron I and Thornburgh ," the Casey plurality emphasized that a State may "further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the State expresses a preference for childbirth over abortion ." Casey , 505 U.S. at 883, 112 S.Ct. 2791 (emphasis added); see also Mazurek v. Armstrong , 520 U.S. 968, 972-73, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam) (affirming Casey and holding that a statute restricting who could perform abortions that was drafted by an anti-abortion group had no improper purpose). The plurality instructed that informed consent to an abortion procedure may mandate disclosure of the "full consequences of" the abortion decision, including "a requirement that a woman be apprised of the health risks of abortion and childbirth," as well as "the impact on" or "consequences to the fetus, even when those consequences have no direct relation to her health." Casey , 505 U.S. at 882, 112 S.Ct. 2791. As the plurality explained, it cannot "be doubted that most women considering an abortion would deem the impact on the fetus relevant , if not dispositive, to the decision." Id. (emphasis added). The joint opinion analogized an informed-consent disclosure of the effect on unborn life to a requirement that an organ recipient learn the effect on the donor before consenting to the transplant: "[w]e would think it constitutional for the State to require that in order for there to be informed consent to a kidney transplant operation the recipient must be supplied with information about risks to the donor as well as risks to himself or herself." Id. at 882-83, 112 S.Ct. 2791.

We have long understood Casey as marking a shift toward greater respect for States' interests in informing women and protecting unborn life. For example, in Women's Medical Professional Corp. v. Taft , 353 F.3d 436 (6th Cir. 2003), we affirmed that "[a]n essential feature of the jointly authored opinion in Casey is the reaffirmation of the substantial state interest in potential life throughout pregnancy." Id. at 443 (internal quotation marks omitted). Likewise, in Memphis Planned Parenthood v. Sundquist , 175 F.3d 456 (6th Cir. 1999), we explained that Casey establishes that States may take steps to ensure that a woman's choice to abort is informed:

[a] plurality of the justices in Casey recognized the weighty concerns of the state in "the protection of potential life" and reasoned that, although "the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the state is prohibited from taking steps to ensure that this choice is thoughtful and informed."

Id. at 460-61 (quoting Casey , 505 U.S. at 871-72, 112 S.Ct. 2791 ). In other words, our circuit has recognized that after Casey there can be no doubt that "a state can require that a doctor give a woman certain information before she may have an abortion." Id. at 465 (citing Casey , 505 U.S. at 884, 112 S.Ct. 2791 ).

Recently, in NIFLA , a majority of the Supreme Court adopted the First Amendment analysis applied in Casey . See NIFLA , 138 S.Ct. at 2373-74. Specifically, the Court explained that although heightened scrutiny generally applies to content-based regulations of speech, "regulations of professional conduct that incidentally burden speech" receive lower scrutiny. Id. at 2373. The Court acknowledged that "drawing the line between speech and conduct can be difficult." Id. But it held that statutes that "facilitate informed consent to a medical procedure," like the one at issue in Casey , fall on the conduct side of the line because they regulate speech "only 'as part of the practice of medicine, subject to reasonable licensing and regulation by the State.' " Id. (quoting Casey , 505 U.S. at 884, 112 S.Ct. 2791 ).

In both NIFLA and Casey , then, the Court clarified that the First Amendment has a limited role to play in allowing doctors to avoid making truthful mandated disclosures related to informed consent. Under the First Amendment, we will not highly scrutinize an informed-consent statute, including one involving informed consent to an abortion, so long as it meets these three requirements: (1) it must relate to a medical procedure; (2) it must be truthful and not misleading; and (3) it must be relevant to the patient's decision whether to undertake the procedure, which may include, in the abortion context, information relevant to the woman's health risks, as well as the impact on the unborn life. See NIFLA , 138 S.Ct. at 2373 ; Casey , 505 U.S. at 882, 112 S.Ct. 2791.

Although much of the analysis in Casey addressed the plaintiffs' undue-burden claim, the joint opinion's First Amendment holding built upon its conclusion that the mandated informed-consent disclosures in that case met the criteria of being truthful, non-misleading, and relevant. Contrary to the Dissent's suggestion that we have "focused on the wrong provision of the Constitution," Dissent at 450, indeed we do address the relevant provision-the First Amendment. Casey and NIFLA recognize that First Amendment heightened scrutiny does not apply to incidental regulation of professional speech that is part of the practice of medicine and that such incidental regulation includes mandated informed-consent requirements, provided that the disclosures are truthful, non-misleading, and relevant. See Casey , 505 U.S. at 882-84, 112 S.Ct. 2791 ; NIFLA , 138 S.Ct. at 2373. Casey also recognizes that, as part of informed consent for an abortion, permissible mandated disclosures under the First Amendment may pertain to the effect of the procedure on unborn life. 505 U.S. at 882, 112 S.Ct. 2791. And in NIFLA , the Court explicitly reaffirmed that heightened scrutiny is not appropriate under the First Amendment for informed-consent requirements of the nature upheld in Casey . See NIFLA , 138 S.Ct. at 2373, 2375. We therefore are applying Casey and NIFLA as they directly pertain to the First Amendment claim and not to any undue-burden claim under the Fourteenth Amendment.

III.

This First Amendment appeal, thus, turns on whether H.B. 2 shares the same material attributes as the informed-consent statute in Casey . If it does, then no heightened First Amendment scrutiny applies because, as NIFLA instructed, an informed-consent law like the Casey statute is a regulation of professional conduct that only incidentally burdens professional speech. See NIFLA , 138 S.Ct. at 2373.

Does H.B. 2 relate to a medical procedure? Yes-abortion. Are the mandated disclosures truthful and not misleading? Yes-no one argues that the heartbeat, sonogram, or its description is false or misleading. We have previously held that similar information conveys objective medical facts. For example, in United States v. Paulus , 894 F.3d 267 (6th Cir. 2018), we explained that "it would be an insult to common sense and the practice of medicine to say that [the doctor] was not measuring facts (or attempting to do so) when he conducted the angiograms at issue" in that case. Id. at 276. Similarly, we explained in Discount Tobacco City & Lottery, Inc. v. United States , 674 F.3d 509 (6th Cir. 2012), that anatomical pictures convey facts:

Students in biology, human-anatomy, and medical-school courses look at pictures or drawings in textbooks of both healthy and damaged cells, tissues, organs, organ systems, and humans because those pictures convey factual information about medical conditions and biological systems. The argument that a picture of a specific person or part of a person is opinion because not every person or part of a person with that condition would appear the same way is unpersuasive.... People with the same illness can and often will suffer a variety of differing symptoms. But one wouldn't say that a list of symptoms characterizing a particular medical condition is nonfactual and opinion-based as a result.

Id. at 559 (footnote omitted). So, "[t]o belabor the obvious and conceded point," the disclosures of the heartbeat, sonogram, and its description "are the epitome of truthful, non-misleading information." Lakey , 667 F.3d at 577-78.

That leaves the final question: are the mandated disclosures relevant to the patient's decision whether to abort unborn life? The Supreme Court's abortion precedent answers this question for us.

"Abortion is a unique act," Casey , 505 U.S. at 852, 112 S.Ct. 2791, that "requires a difficult and painful moral decision," Gonzales v. Carhart , 550 U.S. 124, 159, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007). It is "fraught with consequences ... for the woman who must live with the implications of her decision." Casey , 505 U.S. at 852, 112 S.Ct. 2791. "[I]t seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow." Gonzales , 550 U.S. at 159, 127 S.Ct. 1610 (citations omitted). Abortion also is "fraught with consequences ... for the life or potential life that is aborted," Casey , 505 U.S. at 852, 112 S.Ct. 2791, in whom the State may have a significant interest, Gonzales , 550 U.S. at 158, 127 S.Ct. 1610, and who cannot consent to the procedure to terminate her or his life or potential life. Thus, the Supreme Court has explained that the effect of an abortion procedure on unborn life is "relevant, if not dispositive " information for the patient's decision. See Casey , 505 U.S. at 882, 112 S.Ct. 2791 (emphasis added).

With this background in mind, we hold that H.B. 2 provides relevant information. The information conveyed by an ultrasound image, its description, and the audible beating fetal heart gives a patient greater knowledge of the unborn life inside her. This also inherently provides the patient with more knowledge about the effect of an abortion procedure: it shows her what, or whom, she is consenting to terminate. That this information might persuade a woman to change her mind does not render it suspect under the First Amendment. It just means that it is pertinent to her decision-making. See Casey , 505 U.S. at 882, 112 S.Ct. 2791 (explaining that information on abortion's impact on unborn life "furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed").

The prevalence of ultrasound-use in pregnancy also underscores the relevance of the mandated sonogram of H.B. 2 to a woman's abortion decision. Ultrasounds are ubiquitous procedures that are a part of every pregnancy and, EMW concedes, every abortion. Oral Arg. at 23:53-24:10; R. 3-3, PageID 111, 112-13. Indeed, ultrasounds are "routine measures in pregnancy [and] viewed as 'medically necessary' for the mother and fetus." Lakey , 667 F.3d at 579. The physical invasiveness of the sonogram, as noted by the Dissent, see Dissent at 447-48, 456 n.9, therefore, is no reason to characterize the procedure as an unwarranted invasion of bodily integrity; indeed, the Dissent cites authority "finding that up to 98% of U.S. abortion facilities use an ultrasound to date the pregnancy,"

id. at 455. Also, Kentucky is hardly alone among the States in finding ultrasounds to be relevant: according to amici , twenty-four other States have enacted informed-consent laws that involve ultrasounds.

Although Casey did not involve the displaying of an ultrasound, its facts are not "a constitutional ceiling for regulation of informed consent to abortion, [but] a set of principles to be applied to the states' legislative decisions." Lakey , 667 F.3d at 579. The Casey statute required doctors to inform patients of the unborn life's gestational age and offer them materials further describing unborn life's development at a given gestational age. See Casey , 505 U.S. at 881, 902, 112 S.Ct. 2791 ; Lakey , 667 F.3d at 575 n.2, 578 ; Casey , 744 F.Supp. at 1349. The sonogram requirements of H.B. 2 provide "materially identical" information. See A Woman's Choice-East Side Women's Clinic v. Newman , 305 F.3d 684, 684-85 (7th Cir. 2002) (holding informed-consent law requiring abortion doctors to offer pictures, drawings, and dimensions of the unborn life within patients was "materially identical" to the Casey statute's requirements); see also Lakey , 667 F.3d at 578 (explaining that disclosures like those in H.B. 2 "are not different in kind" than the disclosures in Casey ). A sonogram depicts unborn life in further detail at the current gestational age-information no less relevant to the patient's decision than were the materials at issue in Casey . In fact, because of its individualized nature, a sonogram provides even more relevant information for the patient's decision than any of the required materials at issue in Casey . Whereas the Pennsylvania law provided information about unborn life generally , H.B. 2 directs that the patient receive specific , real-time images of herself and the unborn life within her. H.B. 2 also allows the doctor to explain, in her or his own words, the sonogram, as well as the auscultation, thus further ensuring that the information is tailored to the patient's specific circumstances.

Sonograms of unborn life were uncommon when Roe was decided. Writing for the Roe Court, Justice Blackmun was limited by words on paper-sometimes using medieval descriptions such as "quickening" or "infused with a 'soul' or 'animated' "-to explain when life had been understood to come into being. Roe , 410 U.S. at 133, 93 S.Ct. 705. But in the Cyber Age, words tell only part of a story. For today's Posterity -the Gen-X, Millennial, and Gen-Z generations, whose first picture of themselves commonly comes from a sonogram, and who increasingly turn to photos and videos to share information -one can hardly dispute the relevance of sonogram images for twenty-first-century informed consent.

Under the lower level of scrutiny mandated by Casey and NIFLA , there is no burden placed on the State to justify that its prior regulation "was defective in facilitating informed consent" or that "H.B. 2 filled any gaps in existing informed-consent legislation," as the Dissent apparently believes the State must show, see Dissent at 456-57, 459-60. No such requirements were imposed on Pennsylvania to justify its statute in Casey . But even if the Commonwealth bore such a burden, it would easily meet it here. It is not difficult to conclude that the particularized visual and audible disclosures mandated by H.B. 2 provide more relevant information for informed consent than was provided by the less patient-specific, verbal and written disclosures of the earlier Kentucky abortion-informed-consent statute, KRS § 311.725.

In sum, H.B. 2, like the Pennsylvania statute in Casey , provides truthful, non-misleading, and relevant information aimed at informing a patient about her decision to abort unborn life. Therefore, although the statute requires doctors to disclose certain truthful and non-misleading information relevant to the abortion procedure, it does not violate their First Amendment rights because the required disclosures are incidental to the Commonwealth's regulation of doctors' professional conduct.

IV.

This result is in line with two other circuits that have faced First Amendment challenges to similar abortion-informed-consent statutes. The Fifth and Eighth Circuits read Casey , as well as Gonzales , to establish the same First Amendment test for truthful, non-misleading, and relevant informed-consent disclosures that we apply here.

In Lakey , the Fifth Circuit addressed a Texas informed-consent statute requiring the performance, display, and description of an ultrasound as well as the auscultation of the unborn life's heartbeat. Tex. Med. Providers Performing Abortion Servs. v. Lakey , 667 F.3d 570, 574 (5th Cir. 2012). The Fifth Circuit rejected a First Amendment challenge to the statute, explaining that Casey upheld the constitutionality of informed-consent laws that require disclosure of truthful, non-misleading, and relevant information, including facts about the unborn life, with no heightened scrutiny applying to such laws:

First, informed consent laws that do not impose an undue burden on the woman's right to have an abortion are permissible if they require truthful, non-misleading, and relevant disclosures. Second, such laws are part of the state's reasonable regulation of medical practice and do not fall under the rubric of compelling "ideological" speech that triggers First Amendment strict scrutiny. Third, "relevant" informed consent may entail not only the physical and psychological risks to the expectant mother facing this "difficult moral decision," but also the state's legitimate interests in "protecting the potential life within her."

Lakey , 667 F.3d at 576 (footnote omitted) (quoting Casey , 505 U.S. at 871, 112 S.Ct. 2791 ).

Applying this understanding of Casey , the Fifth Circuit held that requirements that doctors perform, display, and describe the ultrasound and auscultate the heartbeat-though more technologically advanced than the mandated disclosure that Casey allowed-were the "epitome" of truthful, non-misleading, and relevant information that Casey permits:

To belabor the obvious and conceded point, the required disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information. They are not different in kind, although more graphic and scientifically up-to-date, than the disclosures discussed in Casey -probable gestational age of the fetus and printed material showing a baby's general prenatal development stages. Likewise, the relevance of these disclosures to securing informed consent is sustained by Casey and Gonzales , because both cases allow the state to regulate medical practice by deciding that information about fetal development is "relevant" to a woman's decision-making.

Id. at 577-78 (emphasis added).

Because the Texas statute at issue in Lakey satisfied the criteria for an abortion-informed-consent statute (that is, the statute mandated only truthful, non-misleading, and relevant disclosures related to an abortion), the Fifth Circuit determined that no heightened scrutiny of the statute was warranted under Casey and reversed the district court's determination otherwise:

The [ Casey ] plurality response to the compelled speech claim is clearly not a strict scrutiny analysis. It inquires into neither compelling interests nor narrow tailoring. The three sentences with which the Court disposed of the First Amendment claims are, if anything, the antithesis of strict scrutiny. Indeed, the plurality references Whalen v. Roe [429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) ], in which the Court had upheld a regulation of medical practice against a right to privacy challenge. The only reasonable reading of Casey 's passage is that physicians' rights not to speak are, when part of the practice of medicine, subject to reasonable licensing and regulation by the State. This applies to information that is truthful, nonmisleading, and relevant ... to the decision to undergo an abortion.

....

Applying to [the statute] the principles of Casey 's plurality, the most reasonable conclusion is to uphold the provisions declared as unconstitutional compelled speech by the district court.

Id. at 575, 577 (cleaned up).

When faced with an analogous issue, the Eighth Circuit read the Supreme Court's precedent similarly. The Eighth Circuit's decision in Rounds involved a South Dakota informed-consent statute. Planned Parenthood Minn., N.D., S.D. v. Rounds , 530 F.3d 724, 726 (8th Cir. 2008) (en banc). The statute required physicians to give patients a written statement providing, among other things, "[t]hat the abortion will terminate the life of a whole, separate, unique, living human being," "[t]hat the pregnant woman has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and the laws of South Dakota," "[t]hat by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated," and "[a] description of all known medical risks of the procedure ... including ... [d]epression and related psychological distress [and] [i]ncreased risk of suicide ideation and suicide." Id. The statute defined "Human being" as "an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation." Id. at 727. The statute further required physicians to certify in writing that they provided all this information to the patients. Id. Also, the patients had to sign a written statement showing that the abortion doctors had complied with the statute's disclosure requirements and provided them with the required information. Id.

Sitting en banc, the Eighth Circuit explained that Supreme Court precedent likely allowed the statute to stand because it mandated the doctor provide only "truthful, non-misleading information relevant to a patient's decision to have an abortion":

Casey and Gonzales establish that, while the State cannot compel an individual simply to speak the State's ideological message, it can use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient's decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion. Therefore, Planned Parenthood cannot succeed on the merits of its claim that [the statute] violates a physician's right not to speak unless it can show that the disclosure is either untruthful, misleading or not relevant to the patient's decision to have an abortion.

Id. at 734-35. Because Planned Parenthood's evidence did not establish a likelihood of proving that the statute required "anything but truthful, non-misleading and relevant [information] to the patient's decision to have an abortion," the Eighth Circuit vacated the district court's preliminary injunction. Id. at 738.

The Fifth and Eighth Circuits' interpretations of Casey support our holding today. Like the statutes in those circuits' cases, H.B. 2 provides truthful, non-misleading, and relevant information for a decision whether to abort unborn life. Like these other circuits, we find no First Amendment infirmity.

V.

In challenging H.B. 2, EMW echoes Planned Parenthood's unsuccessful arguments in Casey . EMW contends that H.B. 2 warrants heightened scrutiny because it (1) compels ideological speech, (2) interferes with the doctor-patient relationship, and (3) emotionally affects patients.

Ideological Speech . Casey forecloses EMW's attempt to invoke heightened scrutiny by claiming that H.B. 2 requires the doctors to engage in ideological speech. The statute in Casey required doctors to disclose facts about the abortion procedure, the unborn life within a patient, and options available to a patient if she carried that life to term. Planned Parenthood argued that the statute mandated ideological speech that warranted heighted scrutiny. Brief of Petitioners and Cross-Respondents, Casey , 505 U.S. 833 (1992) (No. 91-744), 1992 WL 12006398 at *54 (" Casey Br."). The Casey plurality acknowledged that the disclosure requirements were targeted at causing patients to "choose childbirth over abortion." Casey , 505 U.S. at 878, 112 S.Ct. 2791. Yet, the plurality applied no heightened scrutiny to Pennsylvania's statute because of the alleged ideological nature of the required disclosures. So Casey rejected EMW's rationale for applying heightened scrutiny.

The Fourth Circuit, however, disagreed that Casey forecloses the ideological argument. In Stuart v. Camnitz , 774 F.3d 238 (4th Cir. 2014), decided before NIFLA , the Fourth Circuit struck down as compelled ideological speech a North Carolina statute similar to H.B. 2. Id. at 246, 255-56. We decline to follow Stuart , however, because it gave insufficient regard to the First Amendment analysis in Casey that the Court clarified and adopted as the majority view in NIFLA .

Stuart 's basis for applying heightened scrutiny is called into question by Supreme Court precedent. Stuart applied heightened scrutiny because the facts disclosed by a sonogram have "moral or ideological implications." Id. at 246. However, the "moral or ideological" label has not been used by the Supreme Court as a reason to apply heightened scrutiny to mandated factual disclosures in the informed-consent context. Nor has the Supreme Court considered on what "side of the abortion debate" required factual disclosures fall in deciding the level of scrutiny to apply to abortion-informed-consent laws, as did the Fourth Circuit, see id. And unlike the Fourth Circuit, the Supreme Court has not been concerned that facts might "convey[ ] a particular opinion" like "convinc[ing] women seeking abortions to change their minds." Id.

Instead, under Casey , what matters for First Amendment purposes is whether the disclosed facts are truthful, non-misleading, and relevant to the procedure, not whether they fall on one side of the debate, and not whether they influence a woman to keep the child. Casey , 505 U.S. at 882-84, 112 S.Ct. 2791 ; see also Lakey , 667 F.3d at 575-77 ; Rounds , 530 F.3d at 734-35. In Stuart the Fourth Circuit tried to distinguish Casey by reasoning that the Casey statute was not ideological: "[i]nforming a patient that there are state-issued materials available is not ideological, because the viewpoint conveyed by the pamphlet is clearly the state's-not the physician's." Stuart , 774 F.3d at 253. But the same is true here. H.B. 2 allows doctors to tell patients that the Commonwealth requires this information. The record shows that's exactly what they do. R. 55, PageID 699. Thus, the doctors are just as free as those subject to the statute in Casey to clarify that the mandated disclosures come from the State not the doctors themselves.

After holding that the North Carolina statute compelled ideological speech, the Fourth Circuit in Stuart adopted a "sliding-scale" test first applied by the Ninth Circuit in Pickup v. Brown , 740 F.3d 1208, 1227-29 (9th Cir. 2013) (holding professional speech is viewed "along a continuum"). The Fourth Circuit then asserted the statute "reside[d] somewhere in the middle on that sliding scale" because it regulated medical treatment but also regulated speech, Stuart , 774 F.3d at 248, thus justifying intermediate scrutiny, id. at 249. This "sliding scale" test based on ideological speech, however, appeared nowhere in Casey .

Nor did this test appear in NIFLA . In fact, the NIFLA Court, after citing the Ninth Circuit in Pickup as an example of "[s]ome Courts of Appeals" that "have recognized 'professional speech' as a separate category of speech that is subject to different rules," NIFLA , 138 S.Ct. at 2371, did not adopt any of the "different rules" applied in Pickup . Instead, the Court explained that, generally, it is the compulsion of a message-not whether the compulsion is of an ideological nature-that alters the content of speech and therefore dictates a single heightened-scrutiny standard, with no sliding scale. NIFLA , 138 S.Ct. at 2371-72. However, as discussed, the Supreme Court explicitly carved out two exceptions to that general test that do not call for heightened scrutiny. As also already explained, H.B. 2 falls into at least one of those exceptions.

We therefore find that Stuart is unpersuasive in light of NIFLA , and we decline to follow the Fourth Circuit. If at least one of the two exceptions noted in NIFLA applies, there is no Supreme Court authority for looking to whether the speech has ideological implications and applying a "sliding scale" that may result in intermediate scrutiny.

Doctor-Patient Relationship . As for EMW's second argument, H.B. 2 does not interfere with the doctor-patient relationship any more than other informed-consent laws. "[I]nformed consent is generally required for medical treatment,"

Cruzan v. Director, Missouri Department of Health , 497 U.S. 261, 269, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), and this requirement "is firmly entrenched in American tort law," NIFLA , 138 S.Ct. at 2373 (citations and internal quotation marks omitted). "[T]he common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment." Cruzan , 497 U.S. at 277, 110 S.Ct. 2841. This right, grounded in principles of self-determination, may "demand[ ] a standard set by law for physicians rather than one which physicians may or may not impose upon themselves ." Canterbury v. Spence , 464 F.2d 772, 784 (D.C. Cir. 1972) (emphasis added); see F. Rozovsky, Consent to Treatment: A Practical Guide 2-8 (5th ed. 2018) (explaining that informed-consent standards are set by "state legislation, regulations, and case law" in addition to standards among professional groups). "[T]o safeguard the patient's interest in achieving [her or] his own determination on treatment, the law must itself set the standard for adequate disclosure." Canterbury , 464 F.2d at 787.

The principle that informed-consent requirements may be created by law, as opposed to merely medical-profession custom, applies to all medical procedures, including abortion. As the Supreme Court has instructed, "an informed-consent requirement in the abortion context [is] 'no different from a requirement that a doctor give certain specific information about any medical procedure.' " Gonzales v. Carhart , 550 U.S. 124, 163, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (quoting Casey , 505 U.S. at 884, 112 S.Ct. 2791 ). "The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community." Id. As part of States' regulation of the medical profession, they may require doctors to provide information to their patients to ensure patients can give their informed consent for an abortion, like for any other medical procedure. See Casey , 505 U.S. at 884, 112 S.Ct. 2791.

The district court cited testimony that the mandated disclosures of H.B. 2 are inconsistent with medical standards because (1) their mandatory nature-that is, the Commonwealth's requiring their actual disclosure rather than requiring their being offered to be disclosed-makes them contrary to the customary standard of care for informed consent, and (2) they provide information that the American College of Obstetricians and Gynecologists ("ACOG") and the National Abortion Federation do not consider to be necessary for informed consent. See EMW Women's Surgical Ctr. , 283 F.Supp.3d at 644.

As for the first point, most legally enacted informed-consent disclosures could be subject to the same criticism because they require the doctor to disclose, rather than simply offer to disclose, information. The Casey plurality explained that States can require doctors to give information to patients about abortion just like it can require doctors to give information to an organ donor about that procedure.

Casey , 505 U.S. at 882-83, 112 S.Ct. 2791. Also, the very reason that the required disclosure in NIFLA did "not facilitate informed consent" was because it provided no information about the risks or benefits of a medical procedure. NIFLA , 138 S.Ct. at 2373. In other words, the doctrine of informed consent does not stop at offering the opportunity for the information. It applies equally when a doctor must actually disclose the information. True, for some information, the Casey statute required doctors to inform patients that it was available. See Casey , 505 U.S. at 881, 112 S.Ct. 2791. But it also mandated information actually be given to patients. Id. H.B. 2 is no different.

The second point considered significant by the district court-certain medical groups' views regarding whether a particular mandated truthful disclosure is necessary for informed consent-is not the type of evidence deemed material by the Supreme Court in reviewing abortion-informed-consent statutes. Indeed, the Supreme Court has upheld abortion regulations that were directly contrary to alleged medical-profession custom and that certain medical groups did not consider to be necessary-laws that those groups asserted were inconsistent with accepted standards of care for informed consent. For example, in Casey, the district court found that "[t]he informed consent requirements of the [Pennsylvania law] represent a substantial departure from the ordinary medical requirements of informed consent," Casey , 744 F.Supp. at 1351 ; that "[c]ontent-based informed consent is contrary to the standard medical practice that informed consent be specifically tailored to the needs of the specific patient," id. at 1353 ; and that various provisions of the Pennsylvania law conflicted with official positions of ACOG and the American Public Health Association, see id. at 1351-52, 1355, 1360. Still, the Supreme Court in Casey upheld the law's informed-consent requirements. See Casey , 505 U.S. at 884, 112 S.Ct. 2791.

Similarly, in Gonzales , the Court upheld a statute prohibiting a form of partial-birth abortions, despite the district court's factual findings that the law was contrary to certain medical-profession views, including that ACOG "told Congress several times that the procedure should not be banned," Carhart v. Ashcroft , 331 F.Supp.2d 805, 1011 (D. Neb. 2004), and "that Congress'[s] Finding-that a medical consensus supports the ban because partial-birth abortions are unnecessary-is both unreasonable and not supported by substantial evidence," id. at 1015.

If the validity of an informed-consent law depended on whether doctors agreed with the law-or whether the law required disclosures that, with no law, the doctor would disclose anyway-there would be no need for the law to supplement custom. See Canterbury , 464 F.2d at 784 ("[T]o bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone."). As Casey and Gonzales establish, the constitutionality of an abortion regulation is based on the relevant legal standard as interpreted by the Supreme Court-here, whether the mandated disclosures are truthful, non-misleading, and relevant to the medical procedure-and not necessarily whether the law is consistent with medical-profession custom or views of certain medical groups.

The Dissent, therefore, is mistaken to argue that we "must naturally turn to the medical community" to ascertain the "contours of informed consent" to determine whether a regulation is in accord with "medical practice" or "medical purpose." Dissent at 449. Following that approach would require us, in effect, to hold that a State must surrender its authority to regulate informed consent to private parties. This method, however, would conflict with the Court's recognition in Gonzales that the State may regulate informed consent in the abortion context in the same way that it regulates informed consent in other medical contexts. See 550 U.S. at 163, 127 S.Ct. 1610. The validity of this regulation does not turn on what any private party claims is the norm for the practice of medicine. See Canterbury , 464 F.2d at 784, 787. Instead, we defer to the legislature's determination of which informed-consent disclosures are required, provided that they are relevant, truthful, and non-misleading. This deference does not make our court a player in policy making, as the Dissent contends, see Dissent at 454, but rather preserves our role as umpires who apply the rules enacted by the People's representatives. If the medical groups cited by the Dissent want the legislated rules of informed consent to change, they should address their arguments to those elected representatives. Casey makes clear, however, that the Dissent is incorrect to contend that opposition by medical groups to informed-consent rules necessarily renders those rules in valid under the First Amendment.

The reasoning in Casey also shows that H.B. 2 does not impermissibly infringe on abortion doctors' autonomy. Indeed, as noted, the Casey plurality overruled the Court's earlier holdings that requiring doctors to give certain information to all patients impermissibly intruded upon doctors' discretion. See Casey , 505 U.S. at 881, 112 S.Ct. 2791 ; Thornburgh v. American Coll. of Obstetricians & Gynecologists , 476 U.S. 747, 762, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986).

To be sure, H.B. 2 does require the disclosure of truthful, non-misleading, and relevant facts that otherwise the doctor might not disclose. However, to the extent that it matters to the First Amendment analysis, nothing prevents the doctor from informing the patient that the factual disclosures of H.B.2 are required by the Commonwealth rather than made by the doctor's choice. See generally Rust v. Sullivan , 500 U.S. 173, 200, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (rejecting argument that regulations abridged free-speech rights of the grantee's staff and noting that "[n]othing in [the regulations] requires a doctor to represent as [her or] his own any opinion that [she or] he does not in fact hold"); Fargo Women's Health Org. v. Schafer , 18 F.3d 526, 534 (8th Cir. 1994) (upholding abortion-informed-consent statute and observing that it allowed doctors to "disassociate themselves" from the required information).

It is also true that H.B. 2 differs from the Pennsylvania statute in Casey in that H.B. 2 does not have an express provision, as did the Casey statute, excusing a doctor from providing the mandated disclosure "if he or she can demonstrate by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient." Casey , 505 U.S. at 883-84, 112 S.Ct. 2791. Although the Casey joint opinion noted this statutory provision in the context of discussing "a constitutional right of privacy between a pregnant woman and her physician," id. at 883, 112 S.Ct. 2791, there is no indication that the plurality considered the provision to be significant for its First Amendment review. To the extent that it was, we also must consider that a doctor need not comply with H.B. 2 if an abortion is medically necessary or in the case of a medical emergency, KRS § 311.727(5), and H.B. 2 has other provisions not contained in the Casey statute that effectively give the doctor the same discretion afforded to doctors under the Casey statute. For example, unlike the Casey statute, H.B. 2 imposes no obligation that the patient certify in writing that she has received certain mandated disclosures, see id. at 881, 112 S.Ct. 2791, or even requires that the patient pay attention to the disclosures, and it imposes no penalty on the doctor if the patient ignores the disclosures the doctor is making, see KRS § 311.727(3). These provisions operate to allow a doctor who reasonably believes that the disclosures would result in a severely adverse effect on the patient, to inform the patient in the doctor's discretion that she need not listen to or view the disclosures.

Furthermore, H.B. 2 restricts no doctor from advising the patient to keep or abort the unborn life displayed or from providing any other opinion, medical or otherwise, that the doctor wishes to convey. See generally Wollschlaeger v. Governor of Fla. , 848 F.3d 1293, 1309 (11th Cir. 2017) (en banc) ("Importantly, however, the law [at issue in other cases] did not restrict what the practitioner could say or recommend to a patient or client ." (emphasis added)). Indeed, the statute contains nothing that would prevent a doctor in her or his discretion from advocating to the patient in favor of an abortion.

Given these considerations, the requirements of H.B. 2 are no more of a regulation that departed from a medical group's definition of medical practice than the abortion-informed-consent law upheld in Casey and no more of a regulation of professional speech than many informed-consent and physician-disclosure laws enacted by Kentucky, other States, and the federal government.

Emotional Effect on Patients . As for EMW's third argument-that the emotional effect of H.B. 2 on patients warrants heightened scrutiny- Casey again is instructive. In that case, the district court accepted Planned Parenthood's similar argument and held that the Pennsylvania informed-consent statute did not survive heightened scrutiny because the mandated information "will create the impression in women that the Commonwealth disapproves of the woman's decision" and "will create undesirable and unnecessary anxiety, anguish and fear." Casey , 744 F.Supp. at 1354. In this regard, the district court's factual finding in Casey was like the district court's finding here, based on evidence cited by the Dissent, see Dissent at 457-58, that "H.B. 2 causes patients distress." EMW Women's Surgical Ctr. , 283 F.Supp.3d at 645. We recognize the significance of the district court's finding regarding the negative emotional effect on certain patients, as well as its acknowledgment of declarations from several women who had undergone abortions and who stated that the mandated disclosures of H.B. 2 would have had a positive impact on their emotional health by persuading them not to have an abortion. R. 32-3, PageID 406-08; R. 32-4, PageID 410; R. 32-5, PageID 412-14. However, for purposes of this summary judgment determination, we need not and should not weigh the competing evidence of emotional effect, as the district court and Dissent appear to do. Instead, the Casey plurality did not view any finding regarding emotional effect as material to the level of First Amendment scrutiny of an informed-consent statute. Although the Casey district court's finding as to emotional effect was quoted by Planned Parenthood in its brief to the Supreme Court, see Casey Br. at *52, the controlling opinion in Casey did not make any note of this finding in its analysis of the doctors' First Amendment challenge. Instead, without mentioning emotional effect on patients at all, the Casey plurality reversed the district court's judgment that struck down the informed-consent statute.

Casey thus implicitly recognized that discomfort to the patient from the mandated disclosure of truthful, non-misleading, and relevant information does not make an informed-consent law invalid under the First Amendment. Indeed, discomfort may be a byproduct of informed consent itself. See generally Gonzales , 550 U.S. at 159, 127 S.Ct. 1610 ("Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense."). This may be especially true in the abortion context. For, as the Supreme Court has explained, "[a]bortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life." Harris v. McRae , 448 U.S. 297, 325, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980).

Providing sonogram and auscultation results to the patient furthers the State's legitimate interest, recognized in Casey , of ensuring that the patient understands the full implications of her decision, including the impact on unborn life. Under Casey , the State may decide that its interest in having the unborn life actually be seen and heard before being aborted, and potential negative emotional consequences to the patient from not having received that disclosure, justify the incidental regulation of professional speech and outweigh the risk of negative emotional impact on the patient from the disclosure (even assuming the latter consideration is relevant to the First Amendment analysis and was a permissible finding for summary judgment given the disputed factual record). This conclusion follows from Casey 's reasoning that the State has "an important interest in potential life," Casey , 505 U.S. at 882, 112 S.Ct. 2791, and that there is the risk to the patient's psychological health from having made such a profound decision without adequate disclosure of its consequences, including the impact on unborn life, beforehand:

It cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.

Casey , 505 U.S. at 882, 112 S.Ct. 2791.

EMW has offered no Supreme Court authority to contradict Casey 's teaching. At oral argument, EMW cited only Hill v. Colorado , 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), as support for our considering the impact of H.B. 2 on the listening patients as part of the First Amendment analysis. Hill explained that the effect of certain speech on unwilling listeners can be a factor when determining whether restricting speech is constitutional. See 530 U.S. at 716, 120 S.Ct. 2480 ("[T]he protection afforded to offensive messages does not always embrace offensive speech that is so intrusive that the unwilling audience cannot avoid it."). Hill , however, did not involve a situation where, as here, no speech-fact or opinion-is restricted. The only issue here is whether the government may compel more disclosures of a strictly truthful, non-misleading, and relevant nature.

More fundamentally, though, Hill is distinguishable because it did not involve informed consent to a medical procedure. Hill concerned speech to people on public streets and sidewalks within 100 feet of health-care facilities. 530 U.S. at 707, 120 S.Ct. 2480. The informed-consent exception to heightened scrutiny simply did not apply, as NIFLA confirms. Because H.B. 2, like the Casey statute, provides truthful, non-misleading, and relevant information about an abortion, it helps ensure informed consent to that procedure. It therefore is not subject to heightened scrutiny and complies with the First Amendment under NIFLA and Casey .

VI.

Finally, a few words in response to the Dissent's conclusion, based on physician testimony that is disputed by other physician testimony, that H.B. 2 "would require physicians to harm their patients with 'no medical purpose,' " id. at 449, and the Dissent's statement that "[i]t is transparent that furthering informed consent was not the aim of the Commonwealth-nor will it be achieved by H.B. 2," id. at 460.

First, in order to make the claim that informed consent is a pretextual and not the actual reason for H.B. 2, the Dissent engages in a methodology that we respectfully submit is inconsistent with Casey . The Dissent argues that "H.B. 2 is not coterminous with the medical practice of informed consent. It should not receive deferential review because it regulates the content of physician speech,