The Upside of Abortion Disclosure Laws

By Bernstein, Erin | Stanford Law & Policy Review, Winter 2013 | Go to article overview

The Upside of Abortion Disclosure Laws


Bernstein, Erin, Stanford Law & Policy Review


On both sides of the political spectrum, people have conceived of abortion disclosure laws as an obstacle to abortion. For this reason, abortion rights' supporters have opposed them, and abortion opponents have supported them. Neither side, however, appears to have considered whether scientifically accurate disclosures could have independent, welfare-enhancing medical and informational value to women. This" paper will describe how certain disclosures might not only improve individual and community health, but also provide a positive and democratic avenue for abortion rights.

TABLE OF CONTENTS

TABLE OF CONTENTS
INTRODUCTION
  I. PRE-ABORT ION DISCLOSURE REQUIREMENTS AFTER CASEY
     A. Existing Pre-Abortion Disclosure Laws
     B. Recent Decisions Upholding Pre-Abortion Disclosure
        Requirements
         1. Rounds
         2. Lakey
         3. Daugaard
     C. Post-Casey Scholarship on Abortion Disclosure Laws
 II. THE PUBLIC HEALTH CASE FOR ABORTION-SUPPORTIVE DISCLOSURE
     MANDATES
     A. Public Health and Consumer Protection Disclosures
     B. Disclosures Are The Right Regulatory Technique for Women's
        Health
     C. Public Health Gains Resulting From Abortion-Supportive
        Disclosures
III. JURISPRUDENTIAL AND STRATEGIC BENEFITS OF DISCLOSURE LAWS
     A. Constitutional Viability of Abortion-Supportive Disclosure
        Laws
     B. Who Holds The Right? Separating Patient and Physician
        Interests
     C. Democratic Values
CONCLUSION

INTRODUCTION

We live in a society that values disclosure. It is hard to imagine going through a day without encountering disclosures required by federal, state, or local laws. (1) When we take out a home mortgage, for example, we receive from our lender a thick packet of information about our interest rate and other loan features. (2) Likewise, because of state and federal requirements, we receive disclosures when we review the new iTunes privacy policy, (3) watch a pharmaceutical commercial, (4) hear an airline safety spiel, (5) or sign an informed consent form before a surgical procedure. (6)

In recent years, disclosure laws have become a favored tool of public health advocates. (7) The proliferation of food and menu labeling laws at the federal, state, and local levels is merely the most recent example of this trend. (8) Earlier public health-based disclosure mandates, such as California's Proposition 65 (9) and detailed real estate disclosures related to lead paint and other hazards, (10) have paved the way for the proliferation of public health disclosure mandates across the country.

These disclosures have often been required to fill a perceived gap--whether in bargaining power, or in information availability. And most disclosure mandates listed are considered consumer-oriented devices, favored by those on the left end of the political spectrum. Even in areas such as medicine, where general informed consent laws require doctors to disclose some information to patients, there has been a move afoot toward more tailored disclosures in areas such as cancer treatment, (11) assisted suicide, (12) off-label prescription drug use, (13) and oocyte donation. (14)

But in the nearly twenty years since the Supreme Court blessed a state-mandated pre-abortion disclosure requirement in Planned Parenthood v. Casey, (15) abortion disclosure requirements have been the exception to the relatively uncontroversial acceptance of disclosure laws by patient and consumer advocates. The disclosure laws at issue in Casey and its progeny have generally required a doctor providing abortion care to recite to the patient certain information above and beyond the requirements of the state's informed consent requirements. Such information is generally designed to convey either the state's interest in preserving fetal life or the state's concern with potential negative psychological or physical aftereffects of abortion. (16) To date, such abortion disclosure laws have come nearly exclusively from states with a legislature or electorate that does not support abortion rights. …

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