Academic journal article Columbia Journal of Gender and Law

Raising the Standard of Abortion Informed Consent: Lessons to Be Learned from the Ethical and Legal Requirements for Consent to Medical Experimentation

Academic journal article Columbia Journal of Gender and Law

Raising the Standard of Abortion Informed Consent: Lessons to Be Learned from the Ethical and Legal Requirements for Consent to Medical Experimentation

Article excerpt

INTRODUCTION

In the aftermath of Planned Parenthood of Southeastern Pennsylvania v. Casey, (1) state legislatures have restricted access to abortions by regulating the informed consent process. Taking as an invitation the Court's holding that a state is permitted "to 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," (2) states began to legally mandate specific required disclosures, language, or procedures for obtaining informed consent to abortions. While all states require informed consent before medical procedures either by statute or by case law, the details of the process have traditionally been self-regulated by the medical profession through medical ethics. (3) Currently, thirty-four states have abortion-specific informed consent statutes. (4) However, these statutes mandate disclosures of information that not only go beyond what is required for other medical procedures, but also include information that is inaccurate, incomplete, or irrelevant to the particular abortion procedure to be performed. Thus, states, under the shield of the Casey decision, have used abortion informed consent statutes to express their preference for childbirth over abortion in a way that serves to unduly influence a woman's choice, in violation of the ethical boundaries of medical informed consent.

Under general informed consent principles, abortion providers must disclose information typically required for other medical procedures: the nature and type of the abortion procedure, the risks and consequences of the abortion procedure, alternatives to abortion, and the risks and consequences of not having the procedure, i.e. continuing the pregnancy. (5) The rationale behind these disclosures is to "protect autonomous choice," that is, to ensure the patient's self-determination of whether to undergo a particular medical procedure. (6) However, despite the growing number of state-required disclosures on the risks of the abortion procedure, only twenty-eight states explicitly require physicians to disclose the risks of continuing the pregnancy. (7) This suggests that states are stating their preference for childbirth over abortion but not ensuring that women make a fully informed decision.

Indeed, twenty-four of the thirty-four states with abortion-specific informed consent requirements mandate disclosures of information that go beyond what would be required by medical ethics and general medical informed consent laws and thus do not aid the informed consent process. (8) Despite these additional requirements for abortion informed consent, equal protection challenges brought by providers on the grounds that the abortion procedure is being treated unequally, as compared with other medical procedures, have generally been unsuccessful. (9) Further, under Casey, a state's regulation of the abortion informed consent procedure by requiring disclosures of certain information is permissible if the information is "truthful and not misleading." (10) However, these more detailed abortion informed consent statutes require providers to disclose information about risks of abortion that is inaccurate, incomplete, or irrelevant to the particular abortion procedure that the patient will undergo-for example, mandated disclosures that abortion will increase the woman's risk of depression and suicide, or disclosures about fetal anatomy and pain beyond the gestational stage of the woman's own pregnancy. (11)

These disclosures violate patient autonomy through what bioethicists Tom Beauchamp and James Childress call "informational manipulation." (12) Informational manipulation is a "deliberate act of managing information that nonpersuasively alters a person's understanding of a situation and motivates him or her to do what the agent of influence intends. …

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