No.

2014-2015




IN THE SUPREME COURT OF THE UNITED STATES

_________________

ANDREA SOMMERVILLE AND WILLIAM DENOLF,
Petitioner -Appellants

V.

THE STATE OF OLYMPUS,
Respondent- Appellee









On Writ of Certiorari to the United States
Court of Appeals for the Fourteenth Circuit

_______________

BREIF OF PETITIONER
_______________







QUESTIONS REPRESENTED FOR REVIEW


1) Whether Proposition 417 violates the free speech rights of licensed physicians under the First
Amendment to the United States Constitution?







































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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .i

TABLE OF CONTENTS ...ii

TABLE OF AUTHORITIES ..iii

Cases on Record iii

Supreme Court Cases...iii

Cases Citied within Records iii

CONSTITUTIONAL AND STATUTORY PROVISIONSiv

STATEMENT OF THE CASE ...v

SUMMARY OF THE ARGUMENT .vii

ARGUMENT ..1

I. PROPOSITION 417 VIOLATES THE FREE SPEECH RIGHTS OF
LICENSED PHYSICIANS UNDER THE FIRST AMENDMENT TO
THE UNITED STATES CONSTITUTION.

A. Advertising for professional services may be prohibited when particular content or
method of advertising suggests that its inherently misleading or subject to
abuse.1

B. The state may not require an individual to participate in dissemination of an ideological
message. 2
C. Physician Patient Relationship.3
D. Test for Commercial
Speech.3
E. Mandating Speech.5
ii


TABLE OF AUTHORITIES

CASES ON RECORD

Supreme Court Cases:

Wooley v. Maynard, 430 U.S. 705 (1977)2

Fla. Bar v. Went For it, Inc., 515 U.S. 618 (1995).3

Conant v. Walters, 309 F. 3d 629 (9th Cir. 2002)...3

Accountants Soc. Of VA v. Bowman, 860 F. 2d 602 (4th Cir. 1988)...1,

Stuart v. Loomis, 1:11-CV-804, 2014 WL 186310 (M.D.N.C.2014)..5

Cases Citied within Record

Supreme Court Cases:

Lowe, 472 U.S. at 230, 105 S. Ct. at 2583..1














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CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Constitution, Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.




































iv


STATEMENTS OF THE CASE
The following facts have been stipulated to, by both parties in the Record. In 2012 voters in the State
of Olympus adopted Proposition 417, which went into effect on January 22, 2013. Proposition 417
requires that a licensed physician carry out and perform a vaginal ultrasound, where the women must
be awake and alert facing the monitor. After the physician ensures that the woman has viewed the
ultrasound and heard the heartbeat, she is then read a script prepared by the state. At the end of the
ultrasound the woman is presented with information regarding her fetus size and shape. Along with the
records regarding the fetuss appearance the woman is given a pamphlet the pamphlet includes the
fetuss weekly development, the different abortion procedures available, and a detailed description of
the mental physical health risk that impact women who have abortions.
On February 14, 2013 Ms. Sommerville discovered that she was 8 weeks pregnant and did not
qualify for Medicare. The following day on February 15, 2013 Ms. Sommerville met with Dr. William
DeNolf, a licensed abortion provider. During her visit with Dr. DeNolf she was read the script required
by Proposition 417. Ms. Sommerville was very honest with Dr. DeNolf and informed him that she did
not qualify for any of the exceptions or the waiver of the 24-hour waiting period stated in the script.
After hearing the content of the script Ms. Sommerville became overwhelmed with concern. Ms.
Sommervilles mother and grandmother were both diagnosed with breast cancer, knowing this
prompted Ms. Sommerville to inquire about the possible heightened breast cancer risk. Dr. DeNolf
explained to Ms. Sommerville that because of Proposition 417 he could neither go into detail about the
breast cancer risk nor recommend her to an oncologist. Dr. DeNolf disclosed that he was advised to not
answer any questions about anything related Proposition 417.
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After hearing the devastating news that her decision may put her at risk for cancer that has long
terrorized her family Ms. Sommerville decided to contact the State Department of Public Health. When
contacting the State Department of Public Health regarding the studies referenced in the pamphlet she
was referred to several groups that were associated with the campaign. When contacting the groups no
one would discuss the studies referenced in the pamphlet. Eager to know if the facts were really true
Ms. Sommerville contacted an oncologist who worked outside of Olympus who informed her that the
studies were likely flawed and biased. In addition to the information received from the oncologist,
she also received similar conclusions on the internet. With the information obtained, Ms. Sommerville
continued with the procedures in proposition 417 as directed. She viewed heard the fetus and the heart
beat and at the end was presented with the fetuss test indicating the size and shape and presented with
the pamphlet What a Woman Should Know About Risk Associated with Abortion.
On March 17, 2013 Ms. Sommerville retained Legal counsel and filed a lawsuit in Federal
Court against the State of Olympus claiming that Proposition 417 violates the Due Process Clause of
the Fourteenth Amendment. Ms. Sommerville was later joined by Dr. DeNolf, who argued that
Proposition 417 also violated his First Amendment rights to the United States Constitution because it
constrains him to express political, moral, medical, and scientific opinions that are not his own. The
Federal District Court ruled that Proposition 417 was unconstitutional because it compels physicians
to make statements contrary to their personal beliefs and opinions, and is an undue burden on a
womens right to procure abortion healthcare. The State of Olympus appealed to the United States
Supreme Court were the ruling of the district court was reversed.

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SUMMARY OF THE ARGUMENT
The State of Olympus has made effective Proposition 417 that violates the First Amendment rights to
freedom of speech in requiring physicians to read a script prepared by the state to all patients seeking
to have an abortion. Proposition 417 was written by two state legislatures who both stated that the
whole purpose is not to chip away at abortion but, to improve the lives of those who have them and
to ensure the safety of everyone around them. However in the manner that the script is written it is both
deceptive in its word choices and only provides a minimum amount of information to the
patient. Established in Accountant s Soc. of Va. v. Bowman, 860 F. 2d 602 (4th Cir. 1988) is the
notion that professional services may be prohibited when particular content or method of advertising
suggests that it is inherently misleading or subject to abuse. The script may be subject to abuse
because by not allowing the physicians the right to inform their clients of what is in their best interest
but only giving them the information that the states wants them to have is very controlling. The state is
controlling what the women are allowed to know and as a whole indirectly forcing women to do what
the state wants them to do, which is essentially to keep the fetus so that they dont suffer the lifelong
threat of risk for themselves and their families. The script infringes on the doctors ability to have a
secure trustworthy physician-patient relationship and to be able to give their best medical judgment
according to Conant v. Walters, 309 F. 3d 629 (9th Cir. 2002). As stated in Wooley V. Maynard, 430
U.S. 705 (1977): by forcing an individual, as part of his daily life to be an instrument for advocating
public adherence to an ideological point of view he finds unacceptable, invades the sphere of
intellect and spirit which is the purpose of the First Amendment to reserve for all official control.

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The Florida Bar v. Went for it, Inc., 515 U.S. 618, 634, 115 S. Ct. 2371, 132 L.Ed.2d 541 cases
establishes that professional speech may be entitled to the strongest protection our Constitution has to
offer however, the professional speech in question is of a commercial nature. Under the Central
Hudson Gas, commercial speech that neither concerns unlawful activity nor is misleading may be
regulated if: (1) The asserted governmental interest is substantial, (2) the regulation directly advances
that interest, and (3) the regulation is not more extensive than is necessary to serve that interest. The
Script applies to having a substantial governmental interest and that this regulation can directly
advance the governments interest, but failed the third aspect of the test because it is more extensive
than is necessary to serve that interest and takes infringes on the women and physicians rights.










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ARGUMENT
I. PROPOSITION 417 VIOLATES THE FREE SPEECH RIGHTS OF LICENSED
PHYSICIANS UNDER THE FISRT AMENDMENT TO THE UNITED STATES
CONSTITUTION.
A. Advertising for professional services may be prohibited when particular content or
method of advertising suggests that its inherently misleading or subject to abuse.
The Courts established in Accountants Soc. Of V.A. v. Bowman, 860 F. 2d 602 (4th
Cir. 1988) that the initial classification of a communication as commercial speech, it falls outside the
protection of the First Amendment, if the communication is false, deceptive or misleading. In the
Script prepared by the government there is content that may appear to be perceptually misleading
throughout propelled pessimistic word choice and the list of negative outcomes stemming from having
an abortions. The script also makes the implication that you will be able to receive additional
information about the risked posed by abortion online at the Olympus State Department of Public
Healths Website. However when Ms. Sommerville called the Department of Public Health she was
left with unanswered questions and was directed to a group of people that were associated with the
Proposition 417 campaign. When contacting that group of people she was met with groups who did not
care to discuss the merits of the studies. Not only are women given a script that is bias and deceptive,
but they are also not given any other information but what is provided in the scripts. The risks
described in the scripts are not provided with any statistical background to better help the women
understand their chances when having an abortion or for their doctors to be able to comfort them with
assurance that they are making the right decision. In Lowe, 472 U.S. at 230, 105 S. Ct. at 2583 as cited
in Accountants Soc. of Va. v. Bowman, 860 F. 2d 602 (4th Cir. 1988), the key to distinguishing
between occupational regulation and abridgment of first amendment liberties is finding a personal
nexus between professional and client.


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Lowe also states that a professional who takes a clients individual needs and applies his judgment on
how to obtain their clients necessities are engaging in the practice of a profession. Dr. Denolf not
being able to give his medical opinion causes a limitation on his practice and ability to inform his
client well.
B. The state may not require an individual to participate in dissemination of an ideological
message.
As stated in Wooley v. Maynard, 430 U.S. 705 (1977),We begin with the proposition that the right of
freedom of thought protected by the First Amendment against state action includes both the right to
speak freely and the right to refrain from speaking at all. In Proposition 417, it requires that a licensed
physician read the script to the patient at the initial consultation. Medical providers are prohibited from
discussing the studies stated but are allowed to inform women that they exist. Physicians are also
prohibited from discussing studies that suggest that there are no links between abortion and
depression, suicide, and acts of violence even if asked about them. The physicians are only given the
instructions to encourage the women to contact the State Department of Public Health. Medical
providers in the state of Olympus are forbidden from giving any advice whether to receive an abortion,
the dangers of abortion, or the regrets that may come later in life. Unlike Wooley v. Maynard, where
there is a right refrain from speaking protected by the First Amendment, the physicians run the risk of
a monetary fine or a temporary suspension of their medical license. If the physician decides to
completely ignore Proposition 417 they can be forbidden from practicing both abortions and medicine
completely in Olympus. This would put Dr. DeNolf in a devastating position financially with his
practice being that he is one of the five only abortion providers in Olympus. The First Amendment


protects the right of individuals to hold a point of view different from the majority and to refuse to
foster commands and ideas they find morally objectionable.
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C. Physician Patient Relationship
Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). Without open communications with their
physicians, patients would seem uninformed. Physicians who cannot communicate trustworthy
medical judgments to their patients, may cause the patients to be at a disadvantage in understanding
their situations. This can lead to the patient making unclear decisions. Conant V. Bowman also
emphasis that Physicians must be able to speak frankly and open to patients That need has been
recognized by the courts through the application of the common law doctor patient privilege. So if a
doctor is reading a script that he does not agree with and doesnt mirror his beliefs or take on the
situation than the physicians not able to do his job as efficiently as he would like. Being an abortion
provider under Proposition 417 makes the doctors in Olympus members of a regulated profession that
does not surrender the physicians First Amendment rights.

D. Test for Commercial Speech
In Florida Bar v. Went for it, Inc., 515 U.S. 618, 634, 115 S. Ct. 2371, 132 L.Ed.2d 541 (1995).
Professional speech may be entitled to the strongest protection our Constitution has to offer. The
professional speech in question is of a commercial nature. Under the Central Hudson Gas, commercial
speech that neither concerns unlawful activity nor is misleading may be regulated if: (1) The asserted
governmental interest is substantial, (2) the regulation directly advances that interest, and (3) the
regulation is not more extensive than is necessary to serve that interest.



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1. The asserted governmental interest is substantial.
Proposition 417 will save or improve the lives of women who have abortions by cutting down the
number of suicides, depression, and drug use that follows their decisions.
2. Regulation directly advances that interest.
Proposition does directly advance that interest, but does not allow the physicians to give women all of
the information they need to make their final decisions. Proposition 417 does not allow the women
seeking abortions to speak with their doctors with the confidence that they will be given advice that is
best for them.
3. The regulation is not more extensive than is necessary to serve that interest
Proposition 417 regulates speech more extensively than is necessary to serve interest because it is
misleading, does not better inform the women about abortion, is bias in its wording, compels the
physicians to not disclose information that may be beneficial to the patient, and places a strain on
physician client relationships. Physicians are not able to provide recommendations, ultimately
silencing the physician and patient. As a result, there will be a lack of information flowing between the
physicians. With the lack of being able to recommend her to another doctor, other ailments may arise
or worsen that could have been prevented had the doctor been allowed to recommend the patient.




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E. Mandating Speech
Stuart v. Loomis, 1:11 -CV-804, 2014 WL 186310 (M.D.N.C. 2014). Stuart v. Loomis states that The
First Amendment generally prohibits the government from requiring people to speak its messages.
Because "mandating speech that a speaker would not otherwise make necessarily alters the content of
the speech," speech compelled by the government is typically considered content-based regulation.
Proposition 417 which entails a government issued statement that is prepared by the state that a
physician must read to the patient. Because Dr. DeNolf was against reading the script, it is known that
the script is not something he would have read if given a choice. Proposition 417 states that a physician
cannot disclose certain information or recommend another physician if asked by the patient. The
content of the script is tightly regulated to where a woman who enters the physicians office to receive
an abortion may feel as though she were under scrutiny for her decisions.
For these reasons, we respectfully ask the Court to reverse the ruling of the Fourteenth Circuit Court of
Appeals.


Respectfully Submitted,
Taneilia Jackson and Mariah Coney
Counsel for the Petitioner





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