I currently have a column up on findlaw about an Eighth Circuit decision vacating an injunction against enforcement of a South Dakota statute that requires abortion providers to tell their patients that an abortion will kill a unique human being. Planned Parenthood challenged this version of the statute, passed in 2005, on several grounds, including the First Amendment right of the physician not to be a mouthpiece for the government's moral message about abortion (as opposed to conveying relevant facts, which the government may compel a doctor to do) . I argue in my column that this First Amendment argument is persuasive, notwithstanding the definition section of the S.D. statute, which defines a "human being" as a living member of the species Homo sapiens. I note that the definition provided exposes the moral rather than factual nature of the compelled communication -- the statute asks doctors to tell patients that embryos are defined as "human beings," a contested ideological claim with which most abortion providers likely disagree.
In this blog post, I wanted to focus on a different aspect of the informed consent requirement currently present in many abortion statutes. Unable to prohibit abortion outright, which the Constitution -- under Roe v. Wade and its progeny -- still prohibits, opponents of abortion have instead attempted to reach out to women contemplating termination and "convince" them to take their pregnancies to term. Some of these methods would strike many as coercive. Waiting periods, for example, during which the woman is ostensibly contemplating her decision (on the dubious assumption that she did not contemplate it before making her appointment), can be prohibitive for poor women who live many miles from an abortion clinic and who must therefore take a day off from work each time they are to appear before a doctor. Part of why there are so few clinics, moreover, is that many gynecologists prefer to avoid performing abortions. That is their right, of course, but it may have more to do with the harassment and intimidation by the fringe of the pro-life movement (outlined powerfully in Susan Wicklund's personal memoir, This Common Secret: My Journey as an Abortion Doctor ) than with physicians' sincerely held beliefs. In any event, for many poor rural women, the combination of the waiting period (introduced into law by mainstream pro-life adovcates) and the dearth of providers effectively prohibits them from having an abortion at all.
A government-mandated morality lecture by a doctor, however, is somewhat different from a waiting period. Though unpleasant, it does not make it impossible for the woman to have an abortion. What it does is forcibly confront both the doctor and the patient with the pro-life perspective on their actions, even when neither doctor nor patient has any desire or interest in considering that perspective. By contrast, if I go to my doctor and say "I don't want to know what an appendectomy involves. I don't want to know about risks and benefits. If you think I should have it, I will have it," the government does not require that the doctor ignore my wishes and force me to hear about risks of hemorrhage, etc. I have the right, in other words, to remain ignorant if I want to remain ignorant. The abortion informed consent laws are different. They say that the doctor must convey the information (unless faced with an emergency) to the patient, no matter what the patient wants.
There is a difference, though, between an abortion and an appendectomy. One has the right to surrender one's judgment in connection with unknown risks to oneself, but one does not have a similar right with respect to others. Because the embryo or fetus is another entity, then it may follow that the government can compel the woman to know about the invisible (to her) harms suffered by that other entity, even if she would rather not know. The oddity, of course, is that if the embryo or fetus is truly entitled to rights under the law, it would seem to follow that one such right would be that against being intentionally killed. It is therefore peculiar that because the fetus or embryo is another entity, the woman can be compelled to hear what she would prefer not to hear (such as the gestational age of the fetus or embryo), but she still maintains a right to kill that entity.
One way to reconcile the apparent contradiction is to reject the "is it a person?/isn't it a person?" formulation of the question and opt instead for a bodily integrity approach to abortion. If the woman's right to terminate a pregnancy, in other words, is not a function of the status of the embryo or fetus but is instead a function of her autonomy right not to be compelled by the government to sacrifice her own bodily integrity for another living creature, then it may be consistent to say both that an embryo or fetus has interests and that a woman may terminate a pregnancy, even if termination necessarily kills the embryo or fetus. And if that is one's position on abortion, then perhaps compelled information sessions might be appropriate. I will discuss this idea in greater detail in an upcoming symposium at G.W. Law Center on what we owe future generations. Even on this view, however, it is still inappropriate to force a doctor to utter an ideological position that she does not share, as a matter of First Amendment law, and that remains true even if we assume arguendo that an embryo or fetus may indeed be a member of the moral community.
Posted by Sherry Colb