Irrational Women: Informed Consent and Abortion Regret
Tracy A. Thomas & Tracey Jean Boisseau, eds., Feminist Legal History: Essays on Women and Law (NYU Press 2011)
25 Pages Posted: 24 Feb 2013
Date Written: 2011
This chapter explores the law’s failure in the twenty-first century to treat pregnant women as capable of making their own decisions concerning whether to have an abortion. The Supreme Court’s 2007 decision in Gonzales v. Carhart, which upheld a federal ban on a type of second-trimester abortion that many physicians believe is safest for their patients, brought the question of women’s capacity for abortion decision-making to the forefront of public legal consciousness. In Carhart, the Court abandoned its previous deference and respect for a woman’s right to be her own decision-maker with regard to abortion and instead determined that a pregnant woman lacks capacity to make her own decisions and give informed consent to abortion-related medical treatment. According to the Court, the government may make the final decision regarding a pregnant woman’s healthcare to ensure that she realizes her “ultimate” role as a mother. This chapter recounts the contradictory history in the late twentieth and early twenty-first centuries of abortion law’s regard for women’s agency as decision-makers. It also argues that Carhart’s disrespect for women’s decision-making abilities unjustifiably diverges from the law’s deference to patient healthcare decision-making more generally. The unequal treatment of women as healthcare decision-makers bolsters the argument articulated by feminist legal scholars that abortion restrictions manifest sex discrimination.
Keywords: reproductive health, constitutional law, abortion, pregnancy, women's health, Gonzales v. Carhart, health law, sex discrimination
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