Informed Consent Laws:

Protecting a woman’s right to know

By Mailee R. Smith

Staff Counsel, Americans United for Life

Abortion has two victims: the unborn child and its mother. The following excerpts from real women’s stories demonstrate how vital it is to give proper information to women before they have abortions:

"The doctor never conferred with me . . . I wasn’t given any information on what they were going to do or how. I was just taken in and taken care of, as they put it. I was never given the choice of whether I would want to allow adoption or anything."¹
"I was deceived because I was not told the truth about what an abortion means to the life of the baby. I was not told that at 10 weeks (which is when I had my abortion) my child was already fully formed. I was made to believe that I was doing something that was as natural as going to the dentist for a teeth cleaning."²
"[The doctor] never told me how big my baby was or any of the complications that could happen, and he certainly didn’t tell me about the aftereffects. I trusted him because he had the title of "doctor" . . . I couldn’t believe that my doctor hadn’t told me that my baby was eight inches long and looked like a little human being. He had kept important information from me . . ."³

Issues

Abortion clinics all too often fail to provide adequate and accurate information to women considering abortion. As a result, many women are physically and psychologically harmed by the abortion process.⁴ To better equip women with the knowledge they need before making an abortion decision and to ensure that their consent is valid, informed consent laws should require the following information be provided to a woman at least 24 hours before an abortion:

The name of the doctor who is to perform 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 support, etc.
A brochure explaining risks of and alternatives to abortion and scientifically accurate information concerning the development of the unborn child.

Recent additions in states’ informed consent laws have also included requiring information on fetal pain, the availability of ultrasounds, and the link between abortion and breast cancer (ABC link).

In 1992, the United States Supreme Court (USSC) ruled that informed consent laws are constitutional.⁵ The Court stated that such laws reduce "the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed."⁶

Key Terms

Informed consent is a legal phrase meaning that a person must be fully informed of a medical procedure before giving true consent to that procedure. In the abortion context, it means that a woman is fully informed of the risks, alternatives, and other important medical information concerning the abortion. If a woman is not fully informed of what the procedure or its consequences will or could entail, her consent is not legally valid.
Reflection period refers to the time between the woman’s receipt of information and when the abortion is performed. This time period allows a woman to read the information and reflect upon her decision prior to the abortion.
A medical emergency occurs when a patient has a condition which, on the basis of the physician’s good-faith medical judgment, complicates the medical condition of the patient as to necessitate an immediate abortion in order to avert the patient’s death. A medical emergency also exists if a delay will create a serious risk of substantial or irreversible impairment of a major bodily function.

Talking Points

Informed consent laws -- including 24-hour reflection periods -- are constitutional as an expression of the state’s interest in the health and safety of women.⁷
Reflection periods do not increase health risks to women or place an undue burden on women who have to travel long distances, incur additional costs, etc. Not only has the USSC rejected such arguments,⁸ but most informed consent laws provide medical emergency exceptions and do not require that the information come personally from the abortionist himself -- and thus women need not visit an abortion clinic twice.⁹
There is conclusive evidence that having an abortion can cause serious psychological problems and that women who experience post-abortion psychological problems would have benefited from informed consent laws.¹⁰
Thousands of women have testified that they did not receive adequate counseling from abortion providers.¹¹

Myths & Facts

Myth:

Informed consent laws intrude on the normal patient-physician relationship.

Fact:

Most women never receive any consultation with the physician performing the abortion. There can be no intrusion on a relationship that does not exist in the first place.¹²

Myth:

Informed consent laws force women to receive biased and misleading information.

Fact:

Such laws simply require that a woman be informed of all medical risks and alternatives about which a reasonable patient would want to know.

Myth:

Women already have access to all the information they need about abortion.

Fact:

Researchers have found that 83 percent of women who seek abortion counseling have no prior knowledge about the abortion procedure or fetal development.¹³ Furthermore, access to information is not the same as actually receiving information. A woman’s health is placed in jeopardy when we begin presuming what she does and does not know.

Myth:

This law is actually a threat to a woman’s right to choose.

Fact:

Informed consent laws do not prevent a woman from choosing abortion. Rather, such laws ensure that a woman makes an informed choice. Those who claim to be pro-choice should want to give women the objective information needed to make true choices.

Myth:

A woman who might be denied informed consent already has the right to seek redress against the doctor by filing a malpractice action.

Fact:

A woman will not be able to bring a successful malpractice action unless it can be shown that the abortionist violated the community standard of other abortion providers. If all or most abortion providers are failing to relay information -- as is generally the case -- a woman will be unable to recover damages. Moreover, women suffering post-abortion problems are, due to shame or embarrassment, less likely to bring such claims in the first place.

Myth:

Abortion is 12 times safer than childbirth. Such laws do not improve the health of women.

Fact:

Numerous medical studies now demonstrate the devastating health risks -- both physical and psychological -- of elective abortion, placing earlier claims that abortion is safer than childbirth in serious doubt.¹⁴ Moreover, when research on the abortion-breast cancer risk is factored in, the risk of dying from an abortion is found to exceed the risk of dying from childbirth by orders of magnitude.¹⁵ Currently, at least 28 out of 37 worldwide studies have independently linked induced abortion with breast cancer.¹⁶

State of the States: Where Are We Now?

Current Law

Informed consent laws are in effect in 32 states:

Twenty-four states require informed consent with a one-day (usually 24 hours) reflection period: Alabama, Arkansas, Georgia, Idaho, Indiana (18 hours), Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Virginia, West Virginia, and Wisconsin.
Four states warn of the abortion-breast cancer link: Kansas, Minnesota, Mississippi, and Texas.
Eleven states’ informed consent laws require that a woman be given or at least informed of the opportunity to have and/or review an ultrasound prior to an abortion: Alabama, Arkansas, Indiana, Georgia, Idaho, Louisiana, Michigan, Mississippi, Oklahoma, Utah, and Wisconsin.
Five states require that women receive some sort of information regarding fetal pain: Arkansas, Georgia, Louisiana, Minnesota, and Oklahoma.
Five states have enacted laws that are in litigation or are enjoined: Delaware, Massachusetts, Montana, South Dakota (only the 2005 amendment), and Tennessee.

What Happened in 2007?

More than 70 informed consent bills were introduced. This is an increase over the number of bills introduced in the 2006 legislative session. Many of these bills amended or added additional requirements to existing informed consent laws.

Georgia, Idaho, and Louisiana amended their informed consent laws to require that a woman be offered the opportunity to view the ultrasound image of her unborn child. Mississippi amended its law to require that a woman receive an ultrasound prior to abortion. Similar bills were considered in Connecticut, Florida, Kansas, Missouri, New Hampshire, North Carolina, South Carolina, South Dakota, Texas, Virginia, and West Virginia.
Louisiana also amended its law to include information that, by 20 weeks gestation, the unborn child can feel pain and that anesthesia can eliminate pain. California, Indiana, Kentucky, Missouri, New York, Oklahoma, Oregon, South Carolina, and Virginia considered similar fetal pain information requirements.
Arkansas enacted legislation amending its informed consent law to include a statement that a woman’s consent must be given voluntarily and not as a result of coercion.
The governor of Oklahoma allowed legislation narrowing the definition of "medical emergency" in the state’s informed consent law to be enacted without signature.
At least fifteen states considered other modifications to their informed consent laws. For example, Florida and South Carolina considered amending their laws to include 24-hour reflection periods. On the other hand, Texas considered measures which would have weakened the state’s informed consent law by including exceptions and removing the requirement that women be informed of the abortion-breast cancer link.
Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Oregon, and Wyoming considered enacting informed consent laws.
In Gonzales v. Carhart, a majority of the USSC advocated that a woman be provided with the specific medical information she needs before making the abortion decision.

What To Do In 2008?

States without informed consent laws, such as Arizona, Iowa, and North Carolina, should, in the interest of the health and welfare of women in those states, introduce and debate legislation that at least informs women (24 hours prior to an abortion) of the performing physician’s name and the risks of and alternatives to abortion (as compared to the risks of childbirth).
States already requiring informed consent, such as Kentucky, South Carolina, and South Dakota, should consider amending their existing laws to include information on fetal pain, the availability of ultrasounds, and/or the existence of the abortion-breast cancer link.
States such as Florida and South Carolina should, in the interest of protecting women, consider amending their existing informed consent laws to include 24-hour reflection periods.

Common Questions and Answers

Question:

Don’t informed consent laws unconstitutionally interfere with a doctor’s rights?

Answer:

No. The joint opinion in Casey concluded that it was constitutional for a state to regulate physician speech as part of its regulation of the practice of medicine.¹⁷ Moreover, informed consent laws are, in essence, consumer rights laws. Such laws require that patients be informed about not only what the abortion provider believes is relevant, but also what a reasonable patient would believe is relevant. According to the ACLU, patients should be informed of every risk in elective procedures, even those risks that are the most remote.¹⁸ Because the abortion industry is a for-profit industry, its physicians have every financial reason to deceptively urge that very practical information is irrelevant.

Question:

Isn’t it paternalistic and chauvinistic to assume that women need the state’s help to make up their minds?

Answer:

It is paternalistic and chauvinistic to assume that women must be protected from factual information about the risks of abortion. Abortion is the only invasive medical procedure where the generally-accepted requirements for informed consent are controversial and disregarded.¹⁹ We cannot allow abortion providers to maintain power over women by controlling the information they receive.

Question:

Won’t some of the information required by these laws be distressing to a woman who is about to undergo an abortion?

Answer:

Distress results when a woman learns she has not been given the facts when it is too late to reverse her decision. When many women discover the true facts about their abortions, they repeatedly indicate that they were not given accurate, truthful, and relevant information that might have changed their abortion decisions.

Question:

Will abortions decrease simply because informed consent requirements are burdensome?

Answer:

Statistics in Mississippi and Pennsylvania indicate that the number of abortions decreases because women are informed, not because informed consent laws are burdensome.²⁰

Endnotes

¹ Multiply Abused, available at: http://www.ohiolife.org/SearchEngine/details.asp?id=10179 (last visited Aug. 14, 2007) (emphasis added).

² Women Who’ve Had Abortions, available at: http://www.lovematters.com/women.htm (last visited Aug. 14, 2007).

³ Linda G., "Misinformed" Consent, available at: http://www.afterabortion.org/PAR/V6/n2/testimony.htm (last visited Aug. 14, 2007) (emphasis added). See also Colorado Woman Recalls Her Abortion Tragedy, available at: http://www.texlife.org/docs/coloradowoman.html (last visited Aug. 14, 2007).

⁴ Speckhard & Rue, Post-Abortion Syndrome: An Emerging Public Health Concern, J. Soc. Issues 48(3): 95-119 (1982) (reporting that 81 percent of women surveyed felt victimized by the abortion process).

⁵ Planned Parenthood v. Casey, 505 U.S. 833 (1992). The Supreme Court has also refused to review a lower court ruling which found Mississippi’s informed consent law constitutional. Barnes v. Moore, 970 F.2d 12 (5th Cir. 1992), cert. denied, 506 U.S. 1013 (1992).

⁶ Casey, 505 U.S. at 882.

⁷ See, supra, nn.5-6 & accompanying text. The Court has also upheld a 48 hour reflection period for minors in the context of a parental notice law. Hodgson v. Minn., 497 U.S. 417 (1990).

⁸ Casey, 505 U.S. at 885-86; see also id. at 966-69 (Rehnquist, J., concurring in the judgment and dissenting in part); Utah Women’s Clinic v. Leavitt, 844 F. Supp. 1482, 1490-91 (D. Utah 1994).

⁹ Under most informed consent laws, either the performing or the referring physician can provide the information. Interestingly, abortion advocates have lobbied hard for government approval of RU-486, which requires multiple visits to a clinic, sometimes over the course of weeks.

¹⁰ See V. Rue, Postabortion Syndrome: A Variant of Post Traumatic Stress Disorder, in Postabortion Syndrome: Its Wide Ramifications 2-21 (E. Cosmi & P. Doherty, eds. 1995); see also Lack of Individualized Counseling Regarding Risk Factors for Induced Abortion: A Violation of Informed Consent, RESEARCH Bulletin Vol. 10, Nos. 1 & 2 (Ass’n for Interdisciplinary Research in Values & Soc. Changes Sept./Oct. 1996); Franz & Reardon, Differential Impact of Abortion on Adolescents and Adults, 27 Adolescence 161-72 (Spring 1992); David et al., Postpartum and Postabortion Psychotic Reactions, 13 Family Planning Perspectives 2, 88-91 (Mar./Apr. 1981).

¹¹ See, e.g., R. Reardon, Aborted Women 16-17, 335 (1987) (finding that 85 percent of women surveyed believed they were misinformed or denied relevant information during their pre-abortion counseling); The Abortion Profiteers, Chicago Sun-Times, Nov./Dec. 1978 (reporting that there is more high-pressure selling in abortion clinics than any real counseling).

¹² See Karlin v. Foust, 188 F.3d 446 (7th Cir. 1999); see also Reardon, supra, at 101 (1987); Landy, Administrative, Counseling and Medical Practices in National Abortion Federation Facilities, 14[5] Family Planning Perspectives 257-62 (Sept./Oct. 1982).

¹³ Reardon, supra, at 101.

¹⁴ See, e.g., Reardon et al., Deaths Associated with Abortion Compared to Childbirth: A Review of New and Old Data and the Medical

and Legal Implications, available at: http://www.afterabortion.org/research/DeathsAssocWithAbortionJCHLP.pdf (last visited Aug. 15, 2007) and originally published at 20[2] J. Contemp. Health Law & Pol’y 279 (2004); Thorp et al., Long-Term Physical and Psychological Health Consequences of Induced Abortion: Review of the Evidence, 58[1] Obstet. & Gyn. Survey 67 (2003); Reardon et al., Deaths Associated with Pregnancy Outcome: A Record Linkage Study of Low Income Women, 95[8] S. Med. J. 834 (2002).

¹⁵ See J. Brind et al., Induced Abortion as an Independent Risk Factor for Breast Cancer: A Comprehensive Review and Meta-Analysis, J. Epidemiol. Cmty. Health 50:481-96 (1996).

¹⁶ See American Association of Pro Life Obstetricians and Gynecologists, Induced Abortion and the Subsequent Risk of Breast Cancer, available at: http://www.aaplog.org/ABC.htm (last visited Aug. 14, 2007). On January 24, 2005, a court entered judgment against the All Women’s Health Services clinic in Portland, Oregon, for failing to inform a teenager of the ABC link. The defendants had filed an Offer of Judgment to avoid having the scientific details of the ABC link revealed in court. More details about this case, "Jenny" v. All Women’s Health Clinic (Multnomah County, Or. 2005), can be obtained from the Plaintiff’s attorney, Jonathan Clark, at 503.274.1100. This was the second lawsuit of its kind to be prosecuted and the first to obtain a judgment.

¹⁷ Casey, 505 U.S. at 884.

¹⁸George Annas, The Rights of Hospital Patients: The Basic ACLU Guide to a Hospital Patient’s Rights 68 (1992).

¹⁹ Rue & Speckhard, Informed Consent & Abortion: Issues in Medicine & Counseling, 6 Med. & Mind 1, 75-95 (1991).

²⁰ Miss. Dept. Pub. Health, Reported Induced Terminations of Pregnancy and Induced Termination Ratios, by Year and Race, Procedures Performed in Mississippi, 1976-2000, 2000 Vital Statistics Mississippi (2001), available at: http://www.msdh.state.ms.us/phs/statisti.htm (last visited Aug. 15, 2007); Pa. Dept. of Health, Pennsylvania Vital Statistics 1999, Table D-1 (1999), available at: http://www.health.state.pa.us/stats (last visited Aug. 15, 2007).