Testimony of Mailee R. Smith, Esq.

Before the Missouri House Healthcare Policy Committee

On House Bill 1831 -- Informed Consent Before Abortion Legislation

February 19, 2008

 

Mr. Chairman and Members of the Committee:

 

I am Mailee Smith, staff counsel with Americans United for Life (AUL), a national public interest law firm with a practice in bioethics law. Mailee R. Smith, Esq.I have extensive experience in constitutional law and abortion jurisprudence including the constitutionality of laws regulating women's informed consent before abortion. In the area of informed consent laws, my experience has included legislative work and litigation. Since 2005, I have worked with numerous states on proposed informed consent bills. I have consulted with legislators, participated in the drafting of bills, and served as a media spokesperson.

 

I have thoroughly reviewed House Bill 1831 (HB 1831), relating to the creation of informed consent standards and prevention of coerced abortions. I am testifying in this proceeding as an expert in constitutional law and as an expert on laws requiring informed consent before abortion. I appreciate this opportunity to testify as to the constitutionality of HB 1831 and the vital importance of informed consent legislation.

 

In the last 15 years, the United States Supreme Court (Supreme Court) has explicitly detailed its favor for informed consent requirements. In no other area of abortion jurisprudence has the Supreme Court been so clear. Informed consent laws have repeatedly been upheld as constitutional, withstanding multiple legal challenges. HB 1831 mirrors those laws which the Supreme Court has upheld as vital to women's health.

 

Furthermore, HB 1831 is a valid exercise of the State's right to protect women from the medically-documented harms of abortion.

 

In summary, HB 1831 is simply Supreme Court jurisprudence in legislative form.

 

To assist you in evaluating HB 1831, I am providing specific testimony on (1) the constitutionality of women's right to know laws; (2) the prevalence of women's right to know laws in other states; (3) the types of harm that this bill seeks to avert; and (4) answers to common objections to or misunderstandings of laws requiring informed consent before abortion.

 

 

Informed Consent Laws Are Constitutional and Protect The State's Court-Affirmed Legitimate Interests

 

The clear purpose of HB 1831 is to ensure that women receive all of the information that is necessary for them to make a truly informed abortion decision. One need only observe the language in Planned Parenthood of Southeastern Pennsylvania v. Casey1 and Gonzales v. Carhart2 -- the current bedrocks of abortion jurisprudence -- to understand that the Supreme Court affirms states' interests in protecting the health and welfare of women.

 

A. Planned Parenthood v. Casey

 

In Casey, the Court upheld an extensive informed consent requirement with a 24-hour waiting period. The Court held that a state may take steps to ensure that a woman's choice is thoughtful and informed. "Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself."3 The Court explicitly stated that "[w]hat is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so."4

 

The Court also acknowledged that psychological well-being is a facet of health.5 "In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed."6

 

In addition to regulations detailing philosophic, social, and psychological considerations, Casey also stated that the State may enact measures aimed at ensuring that woman's choice contemplates the consequences for the unborn child.7 For example, it is constitutionally sound to require that a woman receive information on the pain that the unborn child may endure. The Court held in Casey that the State may require doctors to provide information related to the consequences of the abortion on the unborn child, even when those consequences have no direct relation to the mother's physical health.8

 

Casey also squarely addressed arguments that increased regulations make obtaining an abortion more difficult. The Court explicitly stated that the incidental effect of making it more difficult or more expensive to obtain an abortion is not enough to invalidate it.9

 

Just as in Casey, HB 1831 provides that, 24 hours before the abortion, and except in a medical emergency, a woman must be informed of the nature of the procedure, the health risks of the abortion, and the gestational age of the child.10 Also as in Casey, the woman must be provided with materials published by the State describing the unborn child, and information about medical assistance for childbirth, child support from the father, and a list of agencies that provide adoption and other alternative services.11 This type of information was viewed by the Court as "a reasonable measure to ensure an informed choice" and not as a substantial obstacle to the woman.12

 

The Court also explicitly approved of the 24-hour waiting period, stating that "[t]he idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable, particularly where the statute directs that information become part of the background of the decision."13 The Court upheld the 24-hour waiting period even though its effect may be that women must wait more than one day.14 The Court acknowledged that, in the vast majority of cases, a 24-hour delay does not create any appreciable health risk.15

 

B. Gonzales v. Carhart

 

The Court's support for comprehensive informed consent regulations was re-affirmed and re-emphasized in the 2007 Gonzales decision, stating that "[t]he State has an interest in ensuring so grave a choice is well-informed."16 The State's interest is "advanced by dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole . . . "17

 

Moreover, the Court acknowledged that psychological harm can follow abortion, noting that severe depression and loss of esteem can follow.18 The Court found it unexceptionable to conclude that some women come to regret their choice to abort the infant life they once created and sustained.19 Because of these effects, the Court found it all the more necessary for women to receive accurate information before abortion.

 

In addition, the Court held that precedent is clear that the State has a significant role to play in regulating the medical profession.20

 

C. A History of Protection

 

Protecting the health and well-being of women through informed consent laws is not new. As early as 1976, the Court upheld a Missouri law in Planned Parenthood of Central Missouri v. Danforth, stating that the abortion decision is often a stressful decision, making it "desirable and imperative that it be made with full knowledge of its nature and consequences."21

 

In 1983, the Court wrote that the State may legitimately seek to ensure that the abortion decision has been made in light of all of the attendant circumstances -- both psychological as well as physical.22 The Court specifically noted that the State can require the following: confirmation of pregnancy; the gestational age of the unborn child; the availability of assistance during pregnancy and after childbirth; the availability of information on adoption and birth control; the particular risks associated with the abortion technique to be employed; and follow-up instructions.23 The Court also acknowledged that individual counseling should be available and that, for most patients, the mere provision of a printed statement cannot be considered "counseling."24 The State may also establish minimum qualifications for those people who will provide the required information to the woman.25

 

In summary, informed consent laws are unarguably constitutional because the State has a legitimate interest in protecting women from the harms associated with abortion. This legitimate interest has been affirmed time and time again by the Court. In Casey, the Court stated that the State has a legitimate interest from the outset of pregnancy in protecting the health of the woman and the life of the unborn child.26 An informed consent statute is constitutional if its purpose, as here, is "to persuade the woman to choose childbirth over abortion."27

 

HB 1831 is in substantial compliance with the requirements and State interests upheld in each of these cases.

 

 

Women's Right To Know Laws Are Prevalent In Other States

 

It is important to note that a majority of states have laws requiring some form of informed consent before abortion. Currently, informed consent laws are in effect in 32 states:

Information regarding existing women's right to know laws is further summarized in the attached chart PDF, which documents the status of state women's right to know laws and briefly describes the scope and enforceability of these laws.

 

 

The Bill Seeks To Avert Medically Documented Harms

 

This bill ensures that a woman receives information about the immediate and long-term risks associated with abortion. Immediate risks include a perforated uterus, occurring in 1 out of every 500 abortions in the United States; incomplete abortion and the potential for resulting infection; pelvic infection and pelvic inflammatory disease; blood clots and very heavy bleeding; and injury to the cervix and cervical incompetence. These immediate risks are undisputed and appear in numerous state informed consent materials as well as on abortion providers' websites.28

 

Long-term effects of abortion include harmful effects on future pregnancies, including an increased risk of pre-term birth (PTB) and low birth weight. PTB is the leading cause of infant death in the United States, and its link to abortion has been documented in at least 60 significant studies.29 In a 2005 study, women who obtained abortions were 50 percent more likely to deliver a subsequent child before 33 weeks gestation, and 70 percent more likely to deliver a subsequent child before 28 weeks gestation.30 Women who undergo abortion also face an increased risk of placenta previa in subsequent pregnancies, which can be harmful to both mother and child.31

 

It is imperative that women are informed of these risks, and HB 1831 will help ensure that they are.

 

 

Answers To Common Objections Or Misunderstandings

 

Opponents of informed consent laws typically raise the following complaints, and I would like to take this opportunity to respond briefly and directly to the substance of those complaints:

 

(1) Reflection periods are dangerous to women's health.

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 Supreme Court rejected such arguments,32 but most informed consent laws -- including HB 1831 (Mo. Rev. Stat. 188.075) -- provide emergency exceptions and do not require that the information come personally from the abortionist himself; and thus women need not visit the abortion clinic twice.33

 

(2) Woman already have access to all of the information they need about abortion.

Researchers have found that 83 percent of women who seek abortion counseling have no prior knowledge about the abortion procedure or fetal development. Thousands of women have testified that they did not receive adequate counseling from abortion providers. 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.34

 

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

Most women never receive any counseling with the physician performing the abortion. There can be no intrusion on a relationship that does not exist in the first place.35

 

(4) This law is a threat to a woman's right to choose.

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

 

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

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.

 

Conclusion

 

HB 1831 is constitutional under existing legal precedents. It substantially complies with the laws that the Supreme Court has already upheld as constitutional. HB 1831 also furthers the State of Missouri's legitimate interest in "preserving and protecting the health"36 of women.

 

Thank you for the opportunity to testify as to the constitutionality of HB 1831 and the general need for informed consent legislation.

 

 

Endnotes

 

1. 505 U.S. 833 (1992).

 

2. 127 S. Ct. 1610 (2007).

 

3. Casey, 505 U.S. at 872 (emphasis added).

 

4. Id. at 877 (emphasis added).

 

5. Id. at 882.

 

6. Id.

 

7. Id. at 873.

 

8. Id. at 882.

 

9. Id. at 874.

 

10. Id.

 

11. Id. at 881.

 

12. Id. at 883.

 

13. Id. at 885.

 

14. Id. at 885-86.

 

15. Id. at 885. Furthermore, any appreciable health risk would be covered under the State's medical emergency exception. See Mo. Rev. Stat. 188.075.

 

16. Gonzales, 127 S. Ct. at 1634.

 

17. Id.

 

18. Id.

 

19. Id.

 

20. Id. at 1633.

 

21. 428 U.S. 52, 67 (1976).

 

22. Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416,444 (1983). Despite this valid statement, the Court in Akron went on to invalidate the informed consent statute at issue. That invalidation was later overruled in Casey -- an overruling that was re-affirmed in Gonzales. See Gonzales, 127 S. Ct. at 1626; Casey, 505 U.S. at 870, 871, 875, 881-83, 885. The Court in Akron had not fully acknowledged the State's interest in women's health through informed consent statutes.

 

23. Akron, 462 U.S. at 445 n.37.

 

24. Id. at 448 n.38.

 

25. Id. at 449.

 

26. Casey, 505 U.S. at 846, 869, 871.

 

27. Id. at 878 883, 886.

 

28. See, e.g., Georgia Department of Human Resources, "Medical Risks of Abortion," available at http://health.state.ga.us/wrtk/index.asp (last visited Feb. 15, 2008); Louisiana Department of Health and Hospitals, "Abortion: Making a Decision," available at http://dev2.dhh.state.la.us/PDF/Abortion-MakingaDecision.pdf (last visited Feb. 15, 2008); Michigan Department of Community Health, "Abortion Procedures," available at http://michigan.gov/mdch/0,1607,7-132-2940_4909_6437_19077-46328--,00.html (last visited Feb. 15, 2008); Planned Parenthood, "Abortion Procedures," available at http://www.plannedparenthood.org/health-topics/abortion/abortion-procedures-4359.htm  (last visited Feb. 15, 2008).

 

29. See, e.g., John M. Thorp, "Long-Term Physical and Psychological Health Consequences of Induced Abortion: Review of the Evidence," 58[1] Obstetrical & Gynecological Survey 67, 75 (2003); Brent Rooney, "Induced Abortion and Risk of Later Premature Births," 8[2] Journal of American Physicians & Surgeons 46, 46-47 (2003).

 

30. Moreau et al., "Previous Induced Abortions and the Risk of Very Preterm Delivery: Results of the EPIPAGE Study," 112 Brit. J. Obstet. & Gyn. 430-37 (2005).

 

31. J.M. Barrett, "Induced Abortion: A Risk Factor for Placenta Previa," 141 American Journal of Obstretrics and Gynecology 7 (1981).

 

32. 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).

 

33. 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.

 

34. See, e.g., "Multiply Abused," available at: http://www.ohiolife.org/SearchEngine/details.asp?id=10179 (last visited Feb. 15, 2008) ("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."); "Women Who've Had Abortions," available at: http://www.lovematters.com/women.htm (last visited Feb. 15, 2008) ("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."); Linda G., "'Misinformed' Consent," available at: http://www.afterabortion.org/PAR/V6/n2/testimony.htm (last visited Feb. 15, 2008) ("[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 . . . ")

 

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

 

36. Casey, 505 U.S. at 875-76.