Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws
42 Pages Posted: 19 Sep 2008
Date Written: June 2008
In the last few years, several states have adopts laws requiring that some women seeking abortions be told that their fetus may experience pain. These measures are the latest in a growing body of specific informational requirements for abortion procedures, many steeped in scientific controversy. These laws abandon well-settled principles of informed consent -- which give discretion to medical professionals to determine what information is crucial for patients -- in favor of legislative judgments about what particular facts should be told to patients and how these facts should be shared. This Article argues that, to the extent these laws go beyond flagging topics that should be discussed by health care providers and prescribe specific factual claims that must be conveyed to patients, they should be subject to non-deferential judicial review of their accuracy and fairness.
Part I provides an overview of abortion informed consent jurisprudence since Planned Parenthood of Southeastern Pennsylvania v. Casey. Part II suggests a framework for analyzing challenges to specific informed consent provisions. Part II.A argues that false or misleading statements are unconstitutional under either the undue burden or rational basis standards. Part II.B proposes false advertising cases as an instructive analogue, arguing that the accuracy of informed consent provisions should be analyzed similarly. Part II.C considers the principle of judicial deference to legislative fact-finding from several angles, and argues that it should be applied in weak form, or not at all, in the informed consent context. Part III analyzes several states' mandated information on fetal pain within this framework and concludes that they are unconstitutional.
Keywords: reproductive rights, reproductive health, abortion, privacy, informed consent, health law
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