Enhancing Informed Consent:

Ensuring a Woman’s Right to Know

By Katie A. Moulthrop

AUL 2006 Summer Fellow

With each passing year, more and more women emerge from their silence after abortion. They are wounded and speak out in anguish on the physical, emotional, spiritual, and psychological harm they have suffered and still suffer as a direct result of their abortions. Often, this harm arises as a consequence of the fact that women choose abortion without adequate and accurate information concerning the procedure itself, its risks, alternatives, and long-term consequences. Women’s experiences reflect the fact that abortion clinics often fail to provide adequate and accurate medical information to women considering abortion.

In the abortion industry, paternalistic attitudes towards women still prevail and, as a result, women continue to be uninformed regarding the risks and consequences of abortion. States have the constitutional power to take prophylactic measures to prevent this harm by passing comprehensive and carefully-drafted informed consent laws. Thus far, many states have already taken steps in the right direction, passing a variety of informed consent laws. However, there is still much that can be done to inform women completely and accurately on the reality of abortion. In order to protect both victims of abortion -- the unborn child and its mother -- informed consent enhancements, such as ultrasound requirements, information on fetal pain, and information on perinatal care, are essential in the continuing battle to preserve and defend the sanctity of life.

Until recently, optimal informed consent laws required the following information be given to the woman at least 24 hours before an abortion: the name of the doctor performing the abortion, a description of the procedure to be used, the risks of the abortion procedure as well as of childbirth, scientifically accurate information about the unborn child, the possibility of medical benefits, the father’s liability for child support, and a brochure explaining risks of and alternatives to abortion and scientifically-accurate information concerning the development of the unborn child.

Recently, in light of advances in modern medicine and in popular opinion, a few states have realized that these more traditional requirements can be improved upon to further ensure informed consent. Consequently, some states have begun moving into these new areas, including options for the woman to view ultrasound images and hear the heartbeat of the unborn child, information on the possibility of fetal pain, and information on hospice centers that provide perinatal care for children born with fetal abnormalities. These enhancements to existing informed consent statutes provide new and effective means for states to further regulate the practice of abortion, thereby protecting women’s health and unborn life.

Fetal Pain Information Requirements

Beginning in the 1980s with President Ronald Reagan’s statement that “when the lives of the unborn are snuffed out [by abortion], they often feel pain, pain that is long and agonizing,” the debate over whether the unborn feel pain has moved to the forefront of American consciousness.¹

Now, over 20 years later, spurred by testimony on fetal pain during federal court cases on the partial-birth abortion ban, Congress has begun drafting and debating legislation on fetal pain. In the medical community, the accepted consensus² is that unborn children begin feeling pain at 20 weeks gestation.³ This view is exemplified in the general practice of administering anesthesia during in utero procedures on unborn children who are 20 weeks gestation or more. And popular opinion accords with consensus in the medical community. In a recent Zogby poll, 77% of people surveyed said that they favored laws requiring information about fetal pain to women who are 20 weeks gestation or more in their pregnancies.⁴ However, general public concern over whether the unborn feel pain has, to a large extent, not translated into law. In fact, unborn children currently have less legal protection from pain than do commercial livestock in a slaughterhouse or animals in a laboratory.⁵ Furthermore, from testimony at the three federal trials on the partial-birth abortion ban, it appears that abortionists do not even consider the possibility that unborn children experience severe pain during abortion.⁶

For the foregoing reasons, it is crucial that states work on implementing fetal pain information into their informed consent statutes. To date, only five states -- Arkansas, Georgia, Louisiana, Minnesota, and Oklahoma -- have enacted legislation that requires the abortion doctor to inform women of possible fetal pain during an abortion.

The types of measures enacted vary slightly from state to state. For example, Arkansas amended its existing informed consent law to require that women seeking abortions at or after 20 weeks gestation receive written materials that include information on fetal pain.⁷ Georgia requires that women be orally informed, prior to an abortion, that information on fetal pain is available on a state-sponsored website.⁸ Minnesota mandates that a physician or his agent counsel a woman seeking an abortion after 20 weeks gestation as to the possibility that anesthesia would alleviate fetal pain.⁹

In 2007, only nine states considered fetal pain measures. Only one state -- Louisiana -- enacted legislation.¹⁰

States still have a long way to go in terms of enacting fetal pain legislation that is not only complete and accurate in its provisions, but also able to withstand constitutional challenge in court. An ideal fetal pain bill would contain the following basic elements:

A requirement that the abortionist provide the pregnant woman information that unborn children at 20 weeks gestation and beyond are fully capable of feeling pain.
A requirement that the abortionist provide the pregnant woman the option to administer anesthesia to alleviate or eliminate pain to the fetus.

States must endeavor to include information on fetal pain in their informed consent statutes. The law must be updated to reflect both current medical consensus and public opinion. Furthermore, no woman deserves to be uninformed on such an important decision.

Ultrasound Requirements

In addition to requirements on fetal pain information, states can also enact laws which require that women be given the option to see an ultrasound image of her unborn child and hear its heartbeat. Ultrasound requirements such as these serve an essential medical purpose in that they diagnose ectopic pregnancies, which if left undiagnosed can result in infertility or even fatal blood loss.¹¹ And just as importantly, ultrasound requirements ensure informed choice because they allow a woman to see her unborn child as he or she really is, both by seeing his or her form and face on a screen and also by hearing the heartbeat. These provisions both promote the woman’s physical and psychological health and advance the states’ important and legitimate interest in protecting life.¹²

Thus far, eleven states -- Alabama, Arkansas, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Oklahoma, Utah, and Wisconsin -- have some type of ultrasound requirement in their informed consent statutes. While most of the statutes simply require that women be informed of the opportunity to view an ultrasound image, Mississippi requires that an ultrasound be performed prior to abortion. These statutes are steps in the right direction, but there are still improvements to be made. Of the eleven different state statutes, only four¹³ provide for fetal heart tone monitoring in addition to an ultrasound image. Only four¹⁴ require the abortion provider to give the pregnant woman a list of other healthcare providers who perform ultrasound services free of charge.

States should endeavor to include the following basic elements concerning ultrasounds in their informed consent laws:

A requirement that the physician performing the abortion, the referring physician, or the qualified person assisting the physician either inform the woman that ultrasound and fetal heart tone monitoring services are available or, alternatively, provide a list of providers that perform ultrasounds free of charge.
A requirement that the physician give the woman the option of viewing the ultrasound image.

Additionally, a law with ultrasound requirements should contain a provision that requires the abortion provider to adhere to standard medical practice within the community that requires him or her to accurately portray the presence of external members and internal organs, if present or viewable, of the unborn child. One concern is that, without this provision, abortion providers will use the ultrasound equipment to show a woman an image of one of her own organs and then falsely inform her that it is her unborn child. In addition, each law should require some type of certification form which describes exactly what information the woman was provided, and also shows whether or not she opted for the ultrasound and fetal heart tone monitoring and/or anesthesia for her unborn child.

Informed consent laws that allow the woman the option to see her unborn child and hear the heartbeat are concrete, effective steps states can take to protect women’s health and ensure that their consent to abortion is as fully informed as possible. In addition, medical evidence indicates that women feel bonded to their children after seeing them on the ultrasound screen.¹⁵ Once that bond is established, researchers argue, a woman no longer feels ambivalence towards her pregnancy and actually begins to feel invested in her unborn child.¹⁶ Thus, not only do these statutes protect women’s health, they also further states’ interest in protecting life.

Information on Hospice Care for Babies Born with Fetal Abnormalities

For years, the pro-abortion movement has spread the often false idea that abortion is necessary for unborn children with fetal abnormalities. In many situations, what they deem a necessity is really the choice to abort a child that probably won’t survive much longer than birth. For many families, however, aborting their unborn children is not an option, even when it is very likely that the baby will die soon after birth. In 2006, a bill was enacted in Minnesota amending the state’s informed consent law.¹⁷ It requires abortion providers to give women information on hospices that provide perinatal care for children born with fetal abnormalities. Essentially, women carrying a child with a lethal abnormality and considering giving birth (as opposed to undergoing an abortion) receive information about comprehensive care that runs from the diagnosis of the fetal abnormality to the child’s death.

Conclusion

Long gone are the paternalistic days of medicine when the medical community deemed it best for a doctor to withhold crucial information from his or her patients before certain medical procedures. Today, comprehensive informed consent statutes covering all types of medical procedures are the norm, and require doctors to disclose enough information to patients to ensure that their consent is fully informed. Unfortunately, women’s post-abortive experiences reveal to us that old paternalistic attitudes still pervade much of the abortion industry and are still very much practiced by abortion providers. In recent years, it has become glaringly obvious that not only are women not receiving comprehensive information about the risks and consequences of abortion, but that this failure is significantly harming them in a number of ways. States must do all they can to counteract this outdated attitude towards women and its harmful effects. Comprehensive and carefully-drafted informed consent statutes implementing the enhancements discussed in this article can prevent and remedy much of this harm. Women deserve nothing less.

Endnotes

1. Teresa Stanton Collett, "Fetal Pain Legislation: Is it Viable?" 30 Pepp. L. Rev. 161 (2003) (quoting President Reagan and discussing the constitutionality of various forms of fetal pain legislation).

2. It is worth noting, however, that some medical experts argue that unborn children feel pain as early as twelve to thirteen weeks. See Care Commission on Inquiry into Fetal Sentience, Human Sentience Before Birth 5.2.1 (1996).

3. Supra note 1, at 164.

4. Zogby poll (April 15-17, 2004), surveying more than 1,200 people.

5. See, e.g., §2 of the Humane Slaughter Act, 7 U.S.C. 1902.

6. See, e.g., National Abortion Federation v. Ashcroft, 330 F.Supp. 2d 436 (S.D.N.Y 2004) (R. at 512-513).

7. Ark. Code Ann. §20-16-1103, 1104, 1105.

8. Ga. Code Ann. §31-9A-3, 4.

9. Minn. Stat. § 145.4242, 4243.

10. La. H.B. 25 (enacted 2007), to be codified at La. Rev. Stat. Ann. § 40:1299.35.6.

11. Mayo Clinic, "Ectopic Pregnancy" (2006), available at http:// www.mayoclinic.com/health/ectopic-pregnancy/DS00622 (last visited Aug. 17, 2007).

12. Roe v. Wade, 410 U.S. 113, 162 (1973).

13. Georgia (Ga. Code Ann. § 31-9A-3); Indiana (Ind. Code §16- 34-2-1.1); Mississippi (Miss. S.B. 2391 (enacted 2007; to be codified at Miss. Code Ann. § 41-41-34)); Wisconsin (Wis. Stat. § 253.10).

14. Georgia (Ga. Code Ann. § 31-9A-3); Michigan (Mich. Comp. Laws §333.17015); Utah (Utah Code Ann. §76-7-305); Wisconsin (Wis. Stat. §253.10).

15. Joseph C. Fletcher and Mark I. Evans, "Maternal Bonding in Early Fetal Ultrasound Examinations," N.E. J. Med. 308, 392 (1983).

16 Id.

17 Minn. Stat. § 145.4242.