Federally Mandated Informed Consent: Has Government Gone Too Far?

Article excerpt

  I. INTRODUCTION
 II. ETHICAL IMPLICATIONS OF INFORMED CONSENT
III. LEGAL IMPLICATIONS OF INFORMED CONSENT LAWS
 IV. FEDERAL ABORTION LEGISLATION
     A. Partial-Birth Abortion Ban Act
     B. Unborn Child Pain Awareness Act of 2005
     C. Potential Impact of the Unborn Child Pain
        Awareness Act
  V. INFORMED CONSENT LAWS
     A. Planned Parenthood of Central
        Missouri v. Danforth
     B. Franklin v. Fitzpatrick
     C. Freiman v. Ashcroft
     D. Leigh v. Olson
     E. Charles v. Caroy
     F. Planned Parenthood of Southeastern
        Pennsylvania v. Casey
     G. Summit Medical Center of Alabama, Inc. v.
        Siegolman
 VI. THE JOURNAL OF THE AMERICAN MEDICAL
     ASSOCIATION ARTICLE
VII. CONCLUSION

I. INTRODUCTION

On April 17, 2007, the United States Supreme Court handed down a long awaited opinion concerning the constitutionality of a law banning a single, specific abortion procedure. (1) The Partial-Birth Abortion Ban Act (the Act) criminalized a surgical procedure known as "intact D & E" or "D & X" [hereafter D & X]. (2) The method, which is extremely rare and used only after the first trimester of pregnancy, is known outside of the medical community as "partial-birth abortion." (3)

In the months of litigation leading up to the Supreme Court's decision to review the Act, opponents had expressed two primary concerns. First, the Act lacked an exception for the health of the mother. The Supreme Court mandated such an exception in Roe v. Wade and reaffirmed its position numerous times, most recently in Ayotte v. Planned Parenthood of Northern New England. (4) Second, while proponents claimed it applied only to D & X, it was actually broad enough to include all surgical techniques used after thirteen and one third weeks of gestation, thus, imposing an undue burden on women undergoing abortion after that point.

Three federal districts courts agreed with those challenging the Act. The decisions of these courts were upheld by the circuit courts which reviewed the Partial-Birth Abortion Ban Act of 2003. (5) For guidance, all of the courts reviewing the Act relied on a 2000 Supreme Court opinion finding almost identical language in a Nebraska law to be unconstitutional. (6) Surprisingly, the Supreme Court agreed to review two of the circuit court cases.

Before the Supreme Court accepted certiorari, in what appeared to be no more than an attempt to circumvent the judicial system, the 109th United States Congress considered a new abortion measure. If passed, the Unborn Child Pain Awareness Act would have forced abortion providers to deliver a scripted message to women requesting abortion services. (7) Under this legislation, physicians violate the law unless they inform patients who have attained thirteen and one third weeks of pregnancy that "the process of being killed in an abortion will cause the unborn child pain." (8) Sponsors claimed that the bill merely required "informed consent" but opponents contended that the language was meant to dissuade women from undergoing second trimester abortions. Congress was also criticized for choosing physicians to deliver the government's message about fetal pain, a topic on which the medical community has not reached a consensus.

Laws mandating disclosure of particular information are known as informed consent laws. They exist primarily in the area of reproductive health and most often apply to women seeking abortion. This article discusses the legal and ethical issues that arise when lawmakers decide what patients must be told before they can access certain medical procedures.

Part II examines some of the ethical implications of informed consent laws. Physicians have a duty to obtain a patient's informed consent before acting. (9) The duty to inform arises from the principle of individual autonomy. (10) In the past, physicians were sometimes accused of withholding material information from patients. …