"Ensuring so grave a choice is well informed": the use of abortion informed consent laws to promote state interests in unborn life.

• Author: Moredock, Kaitlin

INTRODUCTION

With its 2007 decision in Gonzales v. Carhart, (1) the Supreme Court essentially invited states to regulate abortion through informed consent statutes. (2) Noting the power that informed consent statutes have to persuade a woman to choose childbirth over abortion, Justice Kennedy, writing for the Court, stated that "[t]he government may use its voice and its regulatory authority to show its profound respect for the life within the woman." (3) Kennedy addressed the importance of informed consent laws directly, stating that "some doctors may prefer not to disclose precise details of the means that will be used," particularly in abortion procedures. (4) "[The] lack of information concerning the way in which the fetus will be killed ... is of legitimate concern to the State. The State has an interest in ensuring so grave a choice is well informed." (5) Kennedy encouraged states to craft informed consent laws as a way to regulate abortion procedures and bear witness to their respect for the life of the fetus.

Two years before Gonzales, South Dakota did just that, enacting an informed consent provision to further its interest in protecting unborn life. The statute required the physician to inform the pregnant woman "[t]hat the abortion will terminate the life of a whole, separate, unique, living human being[,] (6) ... [t]hat the pregnant woman has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota," (7) and "[t]hat by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated." (8) The statute also required the physician to provide the pregnant woman with "[a] description of all medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including ... increased risk of suicide ideation and suicide." (9)

But Planned Parenthood Minnesota, North Dakota, South Dakota and its director, Dr. Carol E. Ball, filed suit, arguing that the disclosures required by the statute were facially unconstitutional. (10) The plaintiffs asserted that the informed consent provisions violated the First and Fourteenth Amendment rights of pregnant women to be free from forced indoctrination of the state's ideology, the Fourteenth Amendment liberty interest of pregnant women to choose an abortion, and the First and Fourteenth Amendment rights of the physicians to be free from being compelled to articulate the state's ideology. (11) The trial court granted the motion for a preliminary injunction, finding that the disclosures "violate Id] the First Amendment rights of abortion providers by compelling them to espouse the State's ideology." (12) The Eighth Circuit reversed the district court's decision and remanded the case. (13)

On remand, the district court upheld the provision referred to as the "biological disclosure"--"[t]hat the abortion will terminate the life of a whole, separate, unique, living human being" (14)--because the disclosure was not "untruthful, misleading, or not relevant to the patient's decision to have an abortion." (15) Yet the district court found the "relationship disclosures" (16) untruthful and misleading and therefore unconstitutional. (17) The "medical risk disclosures" (18) were found to be unconstitutionally vague, as well as untruthful and misleading. (19) With regard to the mandate to inform women of increased suicide risk, the court used Webster's Dictionary to define a "known" risk as one that is generally recognized. (20) Though there were five studies presented by the defendants showing an association between suicide ideation and abortions, the court found that the risk was not "known" and therefore disclosure of such a link was untruthful and misleading. (21)

The juxtaposition of Justice Kennedy's invitation to state legislatures to craft informed consent statutes to regulate abortions and the decision of the federal district court in South Dakota to strike down such provisions provides an opportunity to question the limits of what states may accomplish with abortion informed consent statutes. Abortion informed consent statutes are viable avenues for states to further their interests in patient autonomy, women's health, and protection of unborn life. Neutrality toward abortion is not constitutionally required for informed consent legislation; states can use such statutes to persuade women to choose childbirth over abortion in addition to informing them about the nature of the abortion procedure. This Note explores the extent to which informed consent statutes can be used by states to promulgate such preferences and delineates what can be included in such provisions. It delves into the question of whether "relationship disclosures" are fundamentally different from "biological disclosures" such that a state may not require physicians to disclose to their patients that such patients have any type of relationship with the unborn child. Part I gives a brief history of the fight to abortion and the current state of abortion jurisprudence. Part II addresses the differing content of informed consent statutes that states have used, drawing a distinction between substantive informed consent provisions and procedural informed consent provisions. Part III explores the Supreme Court's test for evaluating the constitutionality of informed consent statutes and the treatment of that test in lower courts, emphasizing how First Amendment concerns have become conflated with the Fourteenth Amendment standard for evaluation. Part IV examines the District of South Dakota's recent application of the Supreme Court's test in Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds. (22) This Note elucidates what legislatures should be able to include in abortion informed consent statutes under the Supreme Court guidelines. Namely, courts should recognize that unless a provision places an undue burden on the woman's right to choose abortion--by being untruthful, misleading, or not relevant--it should be upheld. (23)

1. ABORTION JURISPRUDENCE

   1. Roe, Doe, and Casey: Defining the Right to Choose

      In Roe v. Wade, (24) the Supreme Court famously made abortion a fundamental fight flowing from the Fourteenth Amendment right to privacy and announced that laws curtailing abortion were subject to strict scrutiny. (25) A seven-to-two majority held that the concept of privacy guaranteed by the Fourteenth Amendment implicitly encompassed a pregnant woman's fight to terminate her pregnancy. (26) The Roe Court implemented the trimester framework, which in principle allowed varying levels of state regulation of abortion after the first trimester of pregnancy. (27) Roe and its companion case, Doe v. Bolton, (28) conceded that states are protectors of human life, but required any restriction on abortion to have an exception for the life and health of the mother. (29) Doe further explained that "health" could mean any physical, psychological, familial, or emotional factor, as determined by the woman's physician. (30) Because of the required health exception, states were nearly powerless to effectively regulate abortions.

      But in Planned Parenthood of Southeastern Pennsylvania v. Casey, (31) the Court shifted the right to an abortion to a liberty-based theory under the Fourteenth Amendment and upheld portions of an abortion informed consent statute. (32) The Court downgraded abortion from a fundamental right subject to strict scrutiny to a protected liberty interest. (33) Casey rejected the trimester framework, yet claimed to reaffirm the central holding of Roe, which the Casey Court elucidated as the assertion "that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions." (34)

      A plurality of the Court reaffirmed the view that, subsequent to fetal viability, the state could promote its interest in the potentiality of human life by regulating or even proscribing abortion, except where it is necessary for the preservation of the life or health of the mother. (35) Previability, any restrictions enacted by the state must not amount to an undue burden on the fight of a woman to choose an abortion. (36) On the other hand,

      [r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the fight to choose. (37) The Court upheld Pennsylvania's informed consent statute because "the information the State requires to be made available to the woman is truthful and not misleading." (38) The Court found that the statute did not create a substantial obstacle to a woman seeking an abortion, and was thus not an undue burden. (39) The Court upheld the provision as a reasonable means to ensure that a woman's choice was informed. (40) Furthermore, the Court held that the Constitution does not forbid a State from "expressing a preference for normal childbirth." (41) But the Court also confirmed that "the essential holding of Roe forbids a State to interfere with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health." (42)

   2. Stenberg and Gonzales: State Attempts to Regulate Abortion Procedures

      Keeping with Casey, in Stenberg v. Carhart (43) the Court held that abortion regulations must contain an exception providing for the health of the mother. Like Dogs broad health exception requirement, the Court stated that regulations must allow abortion when it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. (44) Though thirty states had enacted statutes banning...