Academic journal article American Journal of Law & Medicine

The Politics of Information: Informed Consent in Abortion and End-of-Life Decision Making

Academic journal article American Journal of Law & Medicine

The Politics of Information: Informed Consent in Abortion and End-of-Life Decision Making

Article excerpt

The politics of reproduction dominate the political landscape now more than ever. One area of controversy has been informed consent statutes for abortion, which have been praised by the pro-life movement but derided by the pro-choice movement. More recently, legislatures have begun to enact informed consent statutes with respect to end-of-life decision making, an area almost as politically controversial as abortion. Like many abortion disclosure laws, some of these have been entitled "Right to Know" statutes. Yet, the supporters and opponents of each set of statutes tend not to be the same, aligning to a large extent based on their place in the culture wars over life and death.

In this Article, I strive not only to show the remarkably similar critiques each side marshals but also to use these concerns to think in more nuanced ways about the goals of informed consent and whether the disclosure mandates achieve those goals. I first argue in favor of the aspirational goals of informed consent as a process that allows patients to participate in their medical decision making. While conceding the inherently political nature of abortion and end-of-life care, I also contend that the significance of decisions regarding those matters warrants, at least in theory, legislative efforts to ensure that patients have the opportunity to engage in deliberative and informed decision making.

In describing and responding to the similar critiques of both sets of laws-the political bias of the statutes; the efforts to persuade, especially with non-medical information; the potential vulnerability of the targeted audience; and the interference with physician discretion-I uncover and challenge some of the presumptions about informed consent inherent in those critiques. Although information that persuades or influences is not per se problematic, I argue that disclosure of information that is inaccurate, untrue, or emotionally inflammatory harms informed consent. Even well-crafted informed consent mandates, however, are insufficient to promote truly deliberative decision making because they oversimplify the complexity of these decisions and fail to respond to the fact that informed consent is a process that requires more than simply the delivery of information; it also requires dialogue and discussion. This Article ends with suggestions for ways to try to promote such a dialogue.

I. INTRODUCTION

The politics of reproduction dominate the political landscape now more than ever. Battles over funding of contraception, personhood amendments, and ultrasound requirements for abortions have taken center stage as politicians clash over reproductive rights. One area of controversy in these debates has been informed consent statutes for abortion. These laws are praised by the pro-life movement but derided by the pro-choice movement as underhanded attempts to end the right to abortion, which are contrary to the principles of informed consent and discriminatory against women. Although the Supreme Court initially suggested that the State could not require disclosure of information aimed at persuading women not to terminate their pregnancies, Planned Parenthood of Southeastern Pennsylvania v. Casey1 changed the constitutional framework for evaluating these laws. The Court explicitly declared that states could require disclosure of information that was meant to be persuasive as long as the information was "truthful and not misleading."2

More recently, legislatures have begun to enact informed consent statutes with respect to end-of-life decision making, an area almost as politically controversial as abortion. Like many of the abortion disclosure laws, some of these have been entitled "Right to Know" statutes. Yet, the supporters and opponents of each set of statutes tend not to be the same. Many of the critics of end-of-life statutes, including religious conservatives, would likely support the abortion informed consent statutes and many of the proponents of the end-of-life statutes would likely oppose abortion informed consent statutes. …

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