Confronting misinformation on abortion: informed consent, deference, and fetal pain laws.

• Author: Tobin, Harper Jean

In the last few years, the topic of "fetal pain" has become a hot one in many state legislatures. Five states now require that some women seeking abortions be told that their fetus may experience pain, with similar bills cropping up around the country. (1) Even Congress has gotten involved, with the outgoing House of Representatives nearly passing a national fetal pain bill in late 2006. (2) These measures are the latest in a growing body of specific informational requirements for abortion procedures, many steeped in scientific controversy. Nearly all of these measures are titled "Woman's Right to Know Acts." (3) These laws abandon well-settled principles of informed consent--which give discretion to medical professionals to determine what information is crucial for patients--in favor of legislative judgments about what particular facts should be told to patients and how these facts should be shared.

Informed consent to medical treatment consists of three essential elements: communication of necessary information, comprehension of that information by the patient, and subsequent consent to treatment. (4) The information that must be communicated includes three key elements: the risks of the proposed treatment, viable alternative treatments, and likely outcomes in the absence of treatment. (5) In every doctor-patient relationship, doctors are bound by law to apply these principles on the basis of their best medical judgment:

Of necessity, the content of the disclosure rests in the first instance with the physician. Ordinarily, it is only he who is in position to identify particular dangers; always he must make a judgment, in terms of materiality, as to whether and to what extent revelation to the patient is called for. (6) These principles, long recognized by the common law, (7) have been codified in state statutes typically requiring that, for any medical treatment, patients be provided with "a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures." (8) Some states have informed consent laws addressing areas as diverse as breast cancer and psychiatric treatment, (9) but the most commonly regulated procedure is abortion. At least thirty-two states have specific informed consent requirements for abortion, (10) and similar provisions have been proposed in other states. (11)

While most abortion-specific informed consent laws simply track common law principles, some do more. In a handful of states, these laws require that specific risks be discussed with patients; some specify statements that must be made, including controversial statements about fetal pain, breast cancer risk, and psychological harms. (12) In many more states, doctor-patient conversations must be supplemented with literature discussing possible risks in terms mandated by the state. (13) Most recently, states have begun requiring statements like the following, which appears in the statutes of four states:

By 20 weeks' gestation, the unborn child has the physical structures necessary to experience pain. There is evidence that by 20 weeks' gestation unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted to be a response to pain. Anesthesia is routinely administered to unborn children who are 20 weeks' gestational age or older who undergo prenatal surgery. (14) As will be discussed, each of these statements misrepresents current medical knowledge. (15) Reproductive rights advocates have criticized these provisions, and at times challenged them in court, for removing the discretion traditionally given to doctors and for potentially misleading women. (16) To date, however, litigation on mandated abortion information has been sparse. A few requirements have been invalidated, and others saved by narrowing constructions; across these cases, judicial opinions have been short on clear analysis. New provisions relating to fetal pain have yet to be challenged in court.

This Article argues that, to the extent these laws go beyond flagging topics that should be discussed by health care providers and prescribe specific factual claims that must be conveyed to patients, they should be subject to non-deferential judicial review of their accuracy and fairness. Part I provides an overview of abortion informed consent jurisprudence since Planned Parenthood of Southeastern Pennsylvania v. Casey. (17) Part II suggests a framework for analyzing challenges to specific informed consent provisions. Part II.A argues that false or misleading statements are unconstitutional under either the undue burden or rational basis standards. Part II.B proposes false advertising cases as an instructive analogue, arguing that the accuracy of informed consent provisions should be analyzed similarly. Part II.C considers the principle of judicial deference to legislative fact-finding from several angles, and argues that it should be applied in weak form, or not at all, in the informed consent context. Part III analyzes several states' mandated information on fetal pain within this framework and concludes that they are unconstitutional.

1. BACKGROUND

   1. Truthful and Not Misleading Disclosures Are Not an Undue Burden

      The plurality in Casey upheld a typical informed consent law, which required that providers inform patients of the nature of the procedure, the health risks of the procedure, and the "probable gestational age of the unborn child," as well as the availability of printed information about fetal development, prenatal care, child support, and adoption services. (18) The Court regarded these requirements as "no different from a requirement that a doctor give certain specific information about any medical procedure." (19) Overruling prior decisions, (20) the plurality found it of no consequence that some of the provisions did not concern the patient's health but instead served to "express[] a preference for childbirth over abortion." (21) As will be discussed below, however, the plurality also indicated that the required disclosure should be "truthful and not misleading." (22)

      Subsequent challenges to informed consent laws have largely centered on the burdens imposed by their procedural requirements, such as twenty-four or forty-eight hour waiting periods or requirements that information be given in person by a physician. (23) Post-Casey, such challenges have generally failed, (24) except where a state constitution imposed strict scrutiny (25) or the statute failed to provide a health exception. (26)

   2. Construing Informed Consent Laws to Avoid Constitutional Violations

      Where plaintiffs have challenged the substance of informed consent provisions, courts have most often construed those provisions in such a way as to avoid any constitutional problems. In so doing, courts have avoided deciding what it would take to find such provisions unconstitutional. (27) In a recent case, a Missouri clinic challenged the state's law requiring physicians to discuss with patients "the indicators and contraindicators, and risk factors including any physical, psychological, or situational factors for the proposed procedure." (28) Missouri's Supreme Court held that the state's abortion statute permits physicians to "exercise [their] professional judgment" in discussing risk factors, and thus "imposes no duty regarding the extent of consultation between a physician and a patient seeking an abortion additional to that already required by common law." (29) Rejecting challenges to a requirement to discuss risks "that a reasonable patient would consider material," Florida's high court similarly read in the words "under the circumstances" from the state's general informed consent law, rendering the provision "a neutral informed consent statute ... comparable to the common law and to [statutes applicable to other procedures]." (30)

      Wisconsin's law went beyond covering general topics such as medical risks and gestational age; it also specified discussion of "the risks of infection, psychological trauma, hemorrhage, endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies and infertility." (31) However, the Seventh Circuit construed Wisconsin's law to allow each physician to "rely on his or her 'best medical judgment' in determining the content of the information that needs to be disclosed." (32) Additionally, in upholding state-mandated printed materials, courts have emphasized that clinicians "may dissociate themselves from the materials and may, or may not, comment on them as they choose." (33)

      In perhaps the most interesting such case, the district court asked "whether it is truthful and not misleading to inform a woman that a nonviable unborn child at more than nineteen week gestation 'may be able to survive' outside the womb." (34) Faced with a complex and conflicting factual record, the court could only conclude that "the definition of the term survive varies among practitioners and medical situations." (35) To avoid any misleading effect, the court construed the statute to require:

      1) a full and complete definition of the term "survive" in accordance with the physician's good faith clinical judgment; 2) the nature of any survival; 3) survival is merely a possibility; 4) survival will or may be of extremely limited duration. (36)

      The court noted that this interpretation was supported by the declared statutory purpose of providing complete information. (37)

   3. Compelled Speech Claims

      In addition to due process claims, informed consent laws have been challenged by abortion providers on their own behalf as a form of compelled speech. (38) The Casey plurality breezily dismissed such a claim on the grounds that Pennsylvania's requirements were part of reasonable state regulation of medicine. (39) Plaintiffs have been unsuccessful in distinguishing Casey, with courts...