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The Irrational Woman: Informed Consent and Abortion Decision-Making


Maya Manian


University of San Francisco School of Law

April 20, 2009

Duke Journal of Gender Law & Policy, Vol. 16, p. 223, 2009

Abstract:     
In Gonzales v. Carhart, the Supreme Court upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients. Carhart presented a watershed moment in abortion law, because it marks the Supreme Court’s first use of the anti-abortion movement’s “woman-protective” rationale to uphold a ban on abortion and the first time since Roe v. Wade that the Court denied women a health exception to an abortion restriction. The woman-protective rationale asserts that banning abortion promotes women’s mental health. According to Carhart, the State should make the final decisions about pregnant women’s healthcare, because the State knows better than the woman herself that her “ultimate” role is as a mother. Carhart’s woman-protective reasoning has pernicious and far reaching implications for gender equity in healthcare. This Article critiques the woman-protective anti-abortion argument from the perspective of healthcare law. It compares women’s healthcare decision-making under abortion law to patient decision-making under more general law. This Article is the first to demonstrate that the woman-protective argument against abortion is an anomaly in the law’s treatment of patient healthcare decision-making. It argues that the denial of pregnant women’s decision-making capacity in abortion law unjustifiably diverges from the law’s respect for patient decision-making capacity in both the tort law doctrine of informed consent and in constitutional law cases governing medical decision-making. In contrast to both private and public law on patient decision-making, abortion law treats competent adult women as incompetent to make decisions about their own healthcare. That abortion law treats women as poorer decision-makers bolsters the claim that sex discrimination underlies abortion regulations.

Number of Pages in PDF File: 70

Keywords: abortion, gender equality, health law, public health, informed consent, constitutional law, women, sexuality, reproductive rights

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Date posted: April 22, 2009 ; Last revised: March 18, 2010

Suggested Citation

Manian, Maya, The Irrational Woman: Informed Consent and Abortion Decision-Making (April 20, 2009). Duke Journal of Gender Law & Policy, Vol. 16, p. 223, 2009. Available at SSRN: http://ssrn.com/abstract=1392441

Contact Information

Maya Manian (Contact Author)
University of San Francisco School of Law ( email )
2130 Fulton Street
San Francisco, CA 94117
United States
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