The Abortion Informed Consent Debate: More Light, Less Heat
39 Pages Posted: 6 Nov 2011 Last revised: 15 Jul 2013
Date Written: November 5, 2011
One of the most notable developments in American abortion policy is the expansion of state abortion informed consent policies. South Dakota, for example, now requires physicians to state that the abortion will “terminate the life of a whole, separate, unique, living human being.” Oklahoma law prohibits a medical provider from performing an abortion unless he has first performed an ultrasound, “display[ed] the ultrasound images so that the pregnant woman may view them,” and provided a verbal description thereof. Such laws have faced significant criticism from medical ethicists and legal scholars, who argue that the laws are ideologically motivated and fundamentally inconsistent with the doctrine of informed consent.
While recognizing the potentially dubious nature of these new requirements, this Article contends that the current articulation of the argument from informed consent does not serve critics’ purposes as effectively as they might hope. Contrary to popular belief, the doctrine of informed consent provides limited guidance about appropriate procedures in the clinical context – including what information must be disclosed, how it should be disclosed, and the motivations of the discloser. Rather, as this Article demonstrates, informed consent is and has always been a socially constructed doctrine, one highly dependent on implicit value judgments that are just now being made explicit in the context of elective abortion.
By emphasizing a more nuanced understanding of informed consent, this Article aims to defuse and civilize the heated debate surrounding the new breed of abortion disclosure requirements. More importantly, it offers critics the opportunity to bolster their challenges to some of the most problematic provisions, such as those requiring disclosure of disputed factual information, those requiring disclosure of non-medically material information in the clinical context, and those requiring patients to view information or images against their will. Finally, it encourages critics to shift their emphasis from informed consent-based arguments towards potentially more persuasive arguments grounded in public policy and constitutional theory.
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