Abortion, Persuasion, and Emotion: Implications of Social Science Research on Emotion for Reading Casey

Abstract

Although abortion jurisprudence under Casey condones State efforts to persuade a woman to forego an abortion in favor of childbirth, the opinion's "truthful and not misleading" language can be read more broadly than it traditionally has. Specifically, even a truthful message may mislead when it inappropriately takes advantage of emotional influence to bias an individual's decision away from the decision that would be made in a non-emotional, fully informed, state. Drawing on the insights of empirical research in the social sciences, I suggest that the sort of emotional information that many States now provide in their "informed consent" statutes can lead to such inappropriate emotional influence, and thus should be examined more closely than heretofore. This broader reading, taking into account empirical research that gives a better idea of individual decision-making, suggests that States' informed consent statutes have the potential to be an impermissible burden on the exercise of a woman's autonomous decision-making about an abortion precisely because they are calculated to bias a woman's free choice, not inform it.

Keywords: abortion, emotion, decision-making, autonomy, persuasion, constitutional law, gender