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

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

INTRODUCTION

In 1981, the U.S. Court of Appeals for the First Circuit reviewed a Massachusetts statute that required a woman seeking an abortion to sign a standardized informed consent form that included, among other specified elements, "a description of the stage of development of the fetus."1 Relying in part on uncontradicted expert testimony heard in by the court below, the Court held that such information, even though factually accurate,2 could cause many women emotional distress, anxiety, and guilt, and was, moreover, not "directly material to any medically relevant fact."3 As such, the First Circuit held that this information's potential to cause emotional distress and consequently to burden a woman's decision-making constituted an impermissible obstacle to her efforts to seek an abortion; therefore, the court ruled the requirement unconstitutional.4

Before the U.S. Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey,5 such a holding was not atypical. Previous federal courts had so ruled when evaluating statutes requiring that more graphic or detailed information be presented.6 And the Supreme Court had twice held similarly, in City of Akron v. Akron Center for Reproductive Health7 and Thornburgh v. American College of Obstetricians and Gynecologists? characterizing such information as involving a "parade of horribles" and, citing the First Circuit's opinion approvingly, as "inflammatory."9

Casey, however, changed this approach. In Casey, the State of Pennsylvania had mandated that a doctor provide, at least twenty-four hours before performing an abortion, particular information regarding "the nature of the procedure, the health risks of the abortion and of childbirth, and the 'probable gestational age of the unborn child.'"10 Further, the Pennsylvania statute required that the doctor make additional printed material available that, in part, described the fetus.11 No abortion could be performed unless a woman acknowledged in writing that she had been informed that these materials were available.12 The goal of this information was, ostensibly, to further the State's interest in obtaining a woman's fully informed consent,13 and the Court approved Pennsylvania's approach. In this way, Casey condoned a state's requirement of the "informed consent" of a woman seeking an abortion.14

Of course, Casey made evident Pennsylvania's effort in this context to use such information to encourage women not to pursue the decision to abort,15 a politicized effort that Akron and Thornburgh had rejected.16 Casey overruled those cases' holdings that the State could not provide "specific information 'designed to influence the woman's informed choice between abortion or childbirth.'"17 Thus, Casey condoned a state's use of the inform...

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