Abortion, Informed Consent, and Regulatory Spillover

54 Pages Posted: 27 Oct 2015 Last revised: 19 Jan 2017

Katherine Shaw

Yeshiva University - Benjamin N. Cardozo School of Law

Alex Stein

Brooklyn Law School

Multiple version iconThere are 2 versions of this paper

Date Written: August 10, 2016

Abstract

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understanding, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.

This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possibility that such standards might cross state lines. Planned Parenthood v. Casey and other decisions that have approved abortion-specific informed-consent requirements have failed to account for this interstate dynamic.

In recent years, fourteen states, led by South Dakota, have enacted statutes that direct doctors to warn patients, as part of an informed-consent dialogue, that abortion might cause depression and even suicide ideation and actual suicide. Although there is broad medical consensus that such warnings are unnecessary, courts have nonetheless concluded that the Supreme Court’s Casey decision shields them from constitutional challenge. This may have implications not just in the states that mandate such warnings, but nationwide. Because doctors’ informed-consent obligations incorporate medical information and practices from other jurisdictions, a doctor’s failure to warn a patient about post-abortion depression may expose her to liability for medical malpractice — even where her own state does not mandate such a warning statutorily. Eliminating this risk by warning a patient that abortion might lead to depression costs the doctor much less than the penalties she might incur for withholding that information.

This dynamic — which we term the “South Dakota effect” — threatens to transform informed-consent practices across the country, with profound consequences for women’s willingness to elect abortion and for the experiences of women who choose to go forward with abortion procedures. More broadly, it highlights the need to rethink the abortion-federalism nexus.

Keywords: Roe v. Wade, Planned Parenthood v. Casey, abortion, informed consent, medical malpractice, federalism, regulatory spillover, spillover, California effect, South Dakota

Suggested Citation

Shaw, Katherine and Stein, Alex, Abortion, Informed Consent, and Regulatory Spillover (August 10, 2016). Indiana Law Journal, Vol. 92, 1-54, 2016; Cardozo Legal Studies Research Paper No. 468; Brooklyn Law School, Legal Studies Paper No. 473. Available at SSRN: https://ssrn.com/abstract=2679373

Katherine Shaw

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

Alex Stein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0615 (Phone)

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