The Irrational Woman: Informed Consent and Abortion Decision-Making
Manian, Maya, Duke Journal of Gender Law & Policy
It must be admitted that women have but little sense of justice.... We say also of women that their social interests are weaker than those of men, and that their capacity for the sublimation of their instincts is less. (1)
Respect for human life finds an ultimate expression in the bond of love the mother has for her child.... While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. (2)
I. INTRODUCTION II. A BRIEF HISTORY OF "PARTIAL-BIRTH" ABORTION BANS III. THE PHYSICIAN & PATIENT: INFORMED CONSENT, AUTONOMY & ABORTION LAW A. Informed Consent in the Healthcare Context B. "Informed Consent" to Abortion from Roe to Casey C. "Informed Consent" and Abortion Decision-Making After Carhart IV. THE STATE AND THE PATIENT: SOME EXCEPTIONS TO PATIENT AUTONOMY A. Exceptions to Patient Autonomy "For the Common Good" 1. Compulsory Vaccination 2. Controlled Substances B. Exceptions to Patient Autonomy "For the Patient's Own Good" 1. Experimental Drugs 2. Physician Assisted Suicide IV. CONCLUSION
This article explores the law's failure to treat pregnant women as capable of making their own decisions concerning whether to have an abortion. The Supreme Court's decision in Gonzales v. Carhart, (3) which upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients, brought the question of women's capacity for healthcare decision-making to the forefront of public legal consciousness. In Carhart, the Court abandoned its previous deference and respect for a woman's right to be her own decision-maker with regard to abortion and instead determined that a pregnant woman lacks capacity to make her own decisions and to give informed consent to abortion-related medical treatment. According to the Court, the government may make the final decision regarding a pregnant woman's healthcare to ensure that she realizes her "ultimate" role as a mother.
Carhart marks the Supreme Court's first refusal to require a health exception to an abortion restriction since Roe v. Wade and its first use of the antiabortion movement's woman-protective rationale to uphold an abortion ban. (4) The woman-protective rationale claims that banning abortion promotes women's mental health. (5) Carhart's woman-protective anti-abortion reasoning casts the federal "partial-birth" abortion ban as a public health measure that serves to protect women from "regret" and depression. Contrary to this claim, the Carhart decision not only endangers women's health, but also may encourage courts and legislatures to approve other similar measures under the guise of "protecting" women. The woman-protective rationale also obscures the underlying constitutional question at issue in challenges to "partial-birth" abortion bans--may the government jeopardize women's health for the sake of the government's "ethical and moral" interests in the fetus? (6)
Carhart's portrayal of women evokes a century-old societal view of femininity. (7) The Carhart Court's cabined view of women's decision-making capacity reflects a gender-stereotyped view of women's nature. (8) The Court also exposed its discriminatory view of women as decision-makers by articulating a new paradigm of "informed consent" in the abortion context that controverts well-established rules of patients' right to informed consent in healthcare law. This article focuses on Carhart's disturbing reasoning--that competent adult women lack the capacity to determine for themselves what is best for their own health--and evaluates its implications in the abortion context and in other areas of medical treatment related to pregnancy. This article criticizes the woman-protective anti-abortion claim from the perspective of healthcare law by comparing the treatment of women's healthcare decision-making under abortion law to patient decision-making under more general law. …