Wednesday, July 09, 2008

"Informed" Consent to Abortion

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


Unknown said...

Calling something a "human being" seems to do little more than raise what I presume most people would consider to be a morally significant matter of fact, not unlike acknowledging that fetuses of a certain level of development have the ability to feel pain. It doesn't follow from either of these facts, however, that abortion is wrong. But if that's the case, then your first amendment argument needs to be revised. The doctors here are not being forced to be a mouthpiece for the government's moral views. They are merely being asked to relay certain factual information that some (most?) patients will find morally significant. Whether doctors should be compelled to disclose facts that are morally but not medically relevant to their decision-making is another question, I guess, but what the implications of first amendment jurisprudence are for it seems harder to say.

egarber said...

Suppose a state passed a law requiring fertility doctors to explain that embryos in a test tube are "unique human beings" -- intended to make people think twice before creating excess samples that will likely be destroyed. (For all I know, maybe there are such statutes).

Would the issue be essentially the same first amendment matter? Or is this perhaps a point where a privacy claim is stronger than in the abortion context?

And for a legislator who would favor such a rule for abortions, but not for embryos outside the body, I'd ask: "really, what's the material difference, if you think a person is created at conception?"

Hamiltwan said...

In response to carl, I believe the problem is that many abortion providers do not believe that the embryo is a "human being" at the time of the abortion, and thus forcing them to tell someone it is one is a moral view. It would be analogous to forcing a priest to tell any prospective converts that most of the miracles performed by saints are easily explained by modern science and thus are not especially miraculous.

The issue is that the legislature is defining human being in a way that may not be fully accepted by the scientific community, and further, they are doing so for an undisguised moral reason (I doubt any legislators are claiming that they merely are trying to ease communication by settling the definition of a word).

Paul Scott said...

If, in fact, many abortion providers don't believe the embryo is a "human being" then that is nothing more than the same sort of willful ignorance employed by meat eaters. The idea that a fetus is not a human being is so stupid that I cannot believe anyone could believe it on rational grounds (as opposed to simply asserting it on political grounds). I expect it is simply a legacy of the abortion debate from a time when pro-choice individuals were politically incapable of arguing that "Yes, of course, the fetus is a human, but none-the-less the right of abortion is fundamental to sexual equality and thus the rights of a woman to an abortion trump the rights of an early term fetus to life."

That said, and though I am generally pro-choice, I do not agree with the eighth circuit's ruling. I would concede completely that the motivation of the legislators drafting this legislation was an attempt at a constitutionally permissible attack on abortion. However, the actual informed consent being required is both accurate and relevant. It is not as if the physicians were required to say something of the sort "do you understand that a significant portion of the population finds the act you are about to commit the moral equivalent of murder and that furthermore the official doctrine of most religions practiced in the United States considers abortion a sin."

In fact, in a very real sense, the political choices made by the pro-choice movement, choices that the movement continues to make today as a simple google search will make very clear, provides real substance to the idea the the information must be provided. Pro-choice "information" pamphlets and other forms of media continue to insist that a fetus is not, in fact, a human being. I think it is reasonable to conclude that a woman seeking an abortion may actually believe this and may be acting on this "information."

That said, I do not see

Twitchard said...

Whether an embyro is a living human being or not is not a 'moral' issue. It's living as it demonstrates the six biological principles of life, and it's a human being as it has the DNA of a human being--of course it's a human being. It would be silly to suggest that it was a cow, or a horse, or any other sort of animal. Calling it a 'moral' issue about whether fetuses are human beings or not is akin to calling it a 'moral' issue about whether Blacks are human beings or not.

And even if it was a 'moral' issue, it would be perfectly OK. The government is allowed to make legislation regarding moral issues. Look to the Bill of Rights which outlaws 'cruel and unusual punishment'. This is a moral issue, plain and simple. So are laws outlawing prostitution or even rape laws. Law is, at the core, for enforcing moral principles. It's silly to condemn a piece of legislation for being 'government-mandated morality'.

Sobek said...

"(on the dubious assumption that she did not contemplate it before making her appointment)"

Out of curiosity, do you support waiting periods before gun purchases? If so, do you do so on the dubious assumption that the purchaser did not contemplate the decision first?

I spent well over a year before buying my first gun. I talked to friends and relatives, went to ranges, researched the issues thoroughly, finally settled on what I wanted, and made my purchase. The government decided I ought to wait a few more days, on the dubious assumption that more than a year wasn't enough time.

I suppose you might object that guns are different. Yes. A gun might be used to kill someone. But an abortion is intended to kill someone. That's the desired outcome in every case, as contrasted with an extremely small percentage of cases where a gun purchase results in death.

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