An Exception-ally Difficult Situation: Do the Exceptions, or Lack Thereof, to the Speech-and-display Requirements for Abortion Invalidate Their Use as Informed Consent?

• Jurisdiction: United States,Federal
• Publication year: 2013
• Citation: Vol. 30 No. 2

An Exception-ally Difficult Situation: Do the Exceptions, or Lack Thereof, to the Speech-And-Display Requirements for Abortion Invalidate their Use as Informed Consent?

Danielle Le Jeune

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AN "EXCEPTION"-ALLY DIFFICULT SITUATION: DO THE EXCEPTIONS, OR LACK THEREOF, TO THE "SPEECH-AND-DISPLAY REQUIREMENTS" FOR ABORTION INVALIDATE THEIR USE AS INFORMED CONSENT?

Danielle C. Le Jeune^*

Table of Contents

Introduction.................................................................................522

I. Informed Consent, Additional Requirements for Abortion, and Exceptions.......................................................526

A. The Traditional Doctrine of Informed Consent.................526
B. Additional Requirements for Informed Consent Applied to Those Obtaining Abortions............................................528

1. Heightened Informed Consent Requirements for Abortion........................................................................528
2. The Speech-and-Display Requirements........................531

C. Exceptions From Informed Consent Requirements...........533

1. Exceptions From Traditional Informed Consent Laws..............................................................................534
2. Exceptions From the Speech-and-Display Requirements................................................................535

II. Application of Casey and Comparison to Traditional Informed Consent..................................................................537

A. The Casey Undue Burden Standard and its Application to the Speech-and-Display Requirements and Their Exceptions..........................................................................537

1. Application of the Effects Prong of the Undue Burden Standard...........................................................538
2. Application of the Purpose Prong of the Undue Burden Standard...........................................................540

a. Application of the Purpose Prong to the Requirements..........................................................541

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b. Application of the Purpose Prong to the Exceptions..............................................................542

B. Comparison of the Speech-and-Display Requirements and Their Exceptions and Traditional Informed Consent Doctrine..............................................................................543

1. Comparison of Informed Consent Doctrine to the Requirements................................................................544
2. Comparison of Informed Consent Doctrine to the Exceptions....................................................................546

III. Remedying the Speech-and-Display Requirements' Violations of Traditional Informed Consent Doctrine.................................................................................548

A. Informed Consent Doctrine Serves as a Valid Justification for the Requirements......................................549
B. The Speech-and-Display Requirements Must Include Greater Exceptions to Validate Their Use as Informed Consent...............................................................................551

1. At a Minimum, the Medical Emergency Exception Must Include Provisions for Psychological Health......551

a. Physicians Should Possess the Discretion to Withhold Information for Psychological Reasons..552
b. Special Exceptions Should Apply to Victims of Rape and Incest......................................................553

2. The Speech-and-Display Requirements Should Include a Provision for Waiver....................................556

Conclusion....................................................................................558

Introduction

The nurse turned up the volume on a radio and the doctor spoke softly, but Carolyn Jones could still hear his words.¹ At an ultrasound only hours earlier, Carolyn learned that her "much-wanted" second child possessed a molecular flaw that meant he may not reach full term and, if he did, would suffer from the moment of his birth.² Out

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of compassion, Carolyn and her husband decided to abort the pregnancy.³ Upon arrival at Planned Parenthood, they learned that Texas law required Carolyn to receive an ultrasound from the doctor who would perform her abortion, listen to the doctor describe the dimensions, heartbeat, limbs, and internal organs of the child she would never have, and then wait at least twenty-four hours before returning for the procedure.⁴ Despite apologies from the doctor and nurses, and their attempts to drown out the words, Carolyn remembers sobbing while hearing the doctor say, "I see four healthy chambers of the heart."⁵ Only later did Carolyn learn that her child's condition qualified her for exemption from hearing this description—a closely regulated and rarely given exception.⁶

The procedure described above, and others like it, are based in the doctrine of informed consent.⁷ Informed consent serves as both a medical ethics obligation and an important concept in tort law.⁸ Although jurisdictions employ different standards for determining the proper scope of informed consent,⁹ every state imposes statutory

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requirements that health care professionals obtain patients' informed consent before proceeding with any type of medical treatment.¹⁰ Most states also impose additional informed consent requirements in the abortion context.¹¹

On January 22, 1973, the Supreme Court released two influential opinions concerning abortion—Roe v. Wade¹² and Doe v. Bolton.¹³ In Roe v. Wade, the Court held that, before a fetus reaches the point of viability, a pregnant woman possesses the right to obtain an abortion without interference from the state.¹⁴ This holding derives from a right to privacy embodied in the Constitution that "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."¹⁵ However, in arriving at its decision, the Court also emphasized that a woman's right to terminate her pregnancy is not absolute because the state retains legitimate interests in both the health and safety of the woman undergoing the procedure and in protecting potential life.¹⁶ In Doe v. Bolton—intended to serve as a companion to Roe v. Wade—the Court upheld the provision of a Georgia abortion statute allowing a physician to exercise his best medical judgment in "light of all factors . . . relevant to the well-being of the patient" in deciding to perform an abortion.¹⁷ However, the Court found all procedural limitations in the statute unconstitutional.¹⁸ These two cases, along with subsequent others,

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form the theoretical basis for evaluating heightened informed consent requirements imposed on women obtaining abortions.¹⁹

In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court upheld additional informed consent requirements for abortion as long as the information provided is "truthful and not misleading" and does not impose an undue burden on the right to obtain an abortion.²⁰ Recently, a few states enacted legislation requiring a woman to obtain an ultrasound while a physician simultaneously describes various attributes of the fetus as a condition precedent to receiving an abortion.²¹ These statutory "speech-and-display requirements"²² include certain exceptions that vary by state.²³ For example, Texas provides narrow categories that qualify for exemption,²⁴ while Oklahoma and North Carolina exempt only one specific situation—medical emergency.²⁵

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This Note examines the speech-and-display requirements for abortion and asks whether the exceptions, or lack thereof, to these requirements invalidate their use as informed consent. Part I discusses traditional informed consent doctrine, the additional requirements imposed in the abortion context, and the exceptions to these requirements.²⁶ Part II considers the validity of these laws as informed consent requirements in light of their exceptions by applying the undue burden standard set out in Casey²⁷ and comparing these requirements and their exceptions with traditional informed consent doctrine.²⁸ Finally, Part III proposes changes that recognize the state's interest in protecting potential life while taking into consideration the ability of a woman to make an autonomous decision.²⁹

I. Informed Consent, Additional Requirements for Abortion, and Exceptions

A. The Traditional Doctrine of Informed Consent

The tort doctrine of informed consent developed over the course of the twentieth century.³⁰ Though originally based in common law, every state has now codified informed consent doctrine.³¹ The American Medical Association defines informed consent as "a process of communication between a patient and physician that results in the patient's authorization or agreement to undergo a specific medical intervention."³² The fundamental value underlying

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informed consent doctrine is personal autonomy.³³ Giving individuals complete discretion in their medical decisions, with all information necessary to make a knowledgeable choice, effectuates this value.³⁴

In order to obtain valid informed consent, a physician must disclose the "material risks"³⁵ of the treatment or procedure and any alternatives, ensure that the patient understands this information, and receive voluntary consent.³⁶ A physician should also give the patient an opportunity to ask questions about the treatment or procedure.³⁷ This interaction forms the basis of another important value of informed consent—the physician-patient relationship.³⁸ While these traditional requirements appear fairly simple, the informed consent laws relating to abortion differ substantially and greatly complicate this process.³⁹

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B. Additional Requirements for Informed Consent Applied to Those Obtaining Abortions

The majority of states impose additional informed consent requirements on abortion that single out this procedure for more restrictive regulation.⁴⁰ Following the...