Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws

Article excerpt

In the last few years, the topic of "fetal pain" has become a hot one in many state legislatures. Five states now require that some women seeking abortions be told that their fetus may experience pain, with similar bills cropping up around the country. (1) Even Congress has gotten involved, with the outgoing House of Representatives nearly passing a national fetal pain bill in late 2006. (2) These measures are the latest in a growing body of specific informational requirements for abortion procedures, many steeped in scientific controversy. Nearly all of these measures are titled "Woman's Right to Know Acts." (3) These laws abandon well-settled principles of informed consent--which give discretion to medical professionals to determine what information is crucial for patients--in favor of legislative judgments about what particular facts should be told to patients and how these facts should be shared.

Informed consent to medical treatment consists of three essential elements: communication of necessary information, comprehension of that information by the patient, and subsequent consent to treatment. (4) The information that must be communicated includes three key elements: the risks of the proposed treatment, viable alternative treatments, and likely outcomes in the absence of treatment. (5) In every doctor-patient relationship, doctors are bound by law to apply these principles on the basis of their best medical judgment:

   Of necessity, the content of the disclosure rests in the first
   instance with the physician. Ordinarily, it is only he who is in
   position to identify particular dangers; always he must make a
   judgment, in terms of materiality, as to whether and to what
   extent revelation to the patient is called for. (6)

These principles, long recognized by the common law, (7) have been codified in state statutes typically requiring that, for any medical treatment, patients be provided with "a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures." (8) Some states have informed consent laws addressing areas as diverse as breast cancer and psychiatric treatment, (9) but the most commonly regulated procedure is abortion. At least thirty-two states have specific informed consent requirements for abortion, (10) and similar provisions have been proposed in other states. (11)

While most abortion-specific informed consent laws simply track common law principles, some do more. In a handful of states, these laws require that specific risks be discussed with patients; some specify statements that must be made, including controversial statements about fetal pain, breast cancer risk, and psychological harms. (12) In many more states, doctor-patient conversations must be supplemented with literature discussing possible risks in terms mandated by the state. (13) Most recently, states have begun requiring statements like the following, which appears in the statutes of four states:

   By 20 weeks' gestation, the unborn child has the physical
   structures necessary to experience pain. There is evidence that by
   20 weeks' gestation unborn children seek to evade certain stimuli
   in a manner which in an infant or an adult would be interpreted to
   be a response to pain. Anesthesia is routinely administered to
   unborn children who are 20 weeks' gestational age or older who
   undergo prenatal surgery. (14)

As will be discussed, each of these statements misrepresents current medical knowledge. (15) Reproductive rights advocates have criticized these provisions, and at times challenged them in court, for removing the discretion traditionally given to doctors and for potentially misleading women. (16) To date, however, litigation on mandated abortion information has been sparse. A few requirements have been invalidated, and others saved by narrowing constructions; across these cases, judicial opinions have been short on clear analysis. …