The upside of abortion disclosure laws.

AuthorBernstein, Erin
Position40th Anniversary of Roe v. Wade Commemorative Articles

On both sides of the political spectrum, people have conceived of abortion disclosure laws as an obstacle to abortion. For this reason, abortion rights' supporters have opposed them, and abortion opponents have supported them. Neither side, however, appears to have considered whether scientifically accurate disclosures could have independent, welfare-enhancing medical and informational value to women. This" paper will describe how certain disclosures might not only improve individual and community health, but also provide a positive and democratic avenue for abortion rights.

TABLE OF CONTENTS TABLE OF CONTENTS INTRODUCTION I. PRE-ABORT ION DISCLOSURE REQUIREMENTS AFTER CASEY A. Existing Pre-Abortion Disclosure Laws B. Recent Decisions Upholding Pre-Abortion Disclosure Requirements 1. Rounds 2. Lakey 3. Daugaard C. Post-Casey Scholarship on Abortion Disclosure Laws II. THE PUBLIC HEALTH CASE FOR ABORTION-SUPPORTIVE DISCLOSURE MANDATES A. Public Health and Consumer Protection Disclosures B. Disclosures Are The Right Regulatory Technique for Women's Health C. Public Health Gains Resulting From Abortion-Supportive Disclosures III. JURISPRUDENTIAL AND STRATEGIC BENEFITS OF DISCLOSURE LAWS A. Constitutional Viability of Abortion-Supportive Disclosure Laws B. Who Holds The Right? Separating Patient and Physician Interests C. Democratic Values CONCLUSION INTRODUCTION

We live in a society that values disclosure. It is hard to imagine going through a day without encountering disclosures required by federal, state, or local laws. (1) When we take out a home mortgage, for example, we receive from our lender a thick packet of information about our interest rate and other loan features. (2) Likewise, because of state and federal requirements, we receive disclosures when we review the new iTunes privacy policy, (3) watch a pharmaceutical commercial, (4) hear an airline safety spiel, (5) or sign an informed consent form before a surgical procedure. (6)

In recent years, disclosure laws have become a favored tool of public health advocates. (7) The proliferation of food and menu labeling laws at the federal, state, and local levels is merely the most recent example of this trend. (8) Earlier public health-based disclosure mandates, such as California's Proposition 65 (9) and detailed real estate disclosures related to lead paint and other hazards, (10) have paved the way for the proliferation of public health disclosure mandates across the country.

These disclosures have often been required to fill a perceived gap--whether in bargaining power, or in information availability. And most disclosure mandates listed are considered consumer-oriented devices, favored by those on the left end of the political spectrum. Even in areas such as medicine, where general informed consent laws require doctors to disclose some information to patients, there has been a move afoot toward more tailored disclosures in areas such as cancer treatment, (11) assisted suicide, (12) off-label prescription drug use, (13) and oocyte donation. (14)

But in the nearly twenty years since the Supreme Court blessed a state-mandated pre-abortion disclosure requirement in Planned Parenthood v. Casey, (15) abortion disclosure requirements have been the exception to the relatively uncontroversial acceptance of disclosure laws by patient and consumer advocates. The disclosure laws at issue in Casey and its progeny have generally required a doctor providing abortion care to recite to the patient certain information above and beyond the requirements of the state's informed consent requirements. Such information is generally designed to convey either the state's interest in preserving fetal life or the state's concern with potential negative psychological or physical aftereffects of abortion. (16) To date, such abortion disclosure laws have come nearly exclusively from states with a legislature or electorate that does not support abortion rights. (17) Not surprisingly, these disclosure laws have been aimed at persuading women not to terminate their pregnancies, and have used controversial--and in some cases scientifically unsupportable--language to do so. (18)

While many scholars and pro-choice advocates have characterized Casey-style abortion disclosure laws as sui generis--an unnecessary tailoring of general informed consent statutes (19)--it is not at all clear that abortion disclosure laws are unique in being so tailored. Rather, it is the state's open interest in promoting a particular outcome through its disclosure regime that differentiates the current spate of abortion disclosure laws from other similarly tailored consumer or medical disclosure mandates.

Pro-choice advocates have filed numerous challenges to pre-abortion disclosure statutes with mixed results, most recently in the Eighth Circuit (20) and the Fifth Circuit. (21) Likewise, scholars have critiqued the disclosure statutes from any number of perspectives. (22) But, somewhat surprisingly, the potential public health gains to be made from a truly informative abortion disclosure mandate have been neglected in this debate. Rather, the default position of a legislative body supportive of abortion rights is assumed to be silence (23)--or at best, symbolic re-codification of Roe as a state statute. (24)

This Article makes the case that state and local governments can and should act affirmatively to enable women to exercise their right to abortion care in an informed manner. (25) The pro-choice refrain has always been that abortion is a decision best made by a woman and her doctor. But the vast majority of primary-care physicians and ob-gyns do not perform abortions. (26) Many may not refer patients for abortions. (27) Almost all of these physicians, however, will come into contact with patients who wish to terminate a pregnancy. (28) Adequate disclosure by all physicians--even (and perhaps especially) by those who do not provide abortion care--is essential, both to promote the informed exercise of women's right to reproductive choice and to improve public health.

Rather than simply rejecting all disclosure laws, public health professionals, legislatures, and scholars should ask: what should women be told when they are considering abortion? Even in states where the legislature or electorate has expressed an opposition to abortion, courts have rejected disclosures that require doctors to say things that are objectively false. (29) A law mandating truthful, accurate, and relevant disclosures would not run afoul of the Constitution and could be an immensely useful public health tool. It would also promote, rather than inhibit, the informed exercise of the right to reproductive choice.

From a public health perspective, surely there is some information that would be useful to impart to patients to ensure that they are informed of their right to terminate as well as of factual information surrounding abortion procedures. From a constitutional perspective, if a state's interest in "respect for life" is properly advanced by mandating that women be given particular disclosures before they may choose to terminate, (30) it should follow that a state's interest in protecting the statutory, (31) state constitutional, (32) and federal constitutional (33) rights of women to terminate a pregnancy could similarly, be served by a mandated disclosure.

Imagine, for example, a Miranda (34) type advisement for pregnant women considering termination:

Your right to terminate your pregnancy is protected by the federal and state constitutions. First trimester abortion is a safe, legal, and common procedure, with a very low complication rate. An abortion is highly unlikely to affect your ability to have children in the future and the cost of the procedure may be covered by your insurance. The Miranda analogy is an apt one (35)--a constitutional right (albeit an unpopular one, in some quarters) is at stake, time is of the essence, and without proper information disclosures, the right may be waived without the advisee knowing it. (36) In both instances, the consequences of an involuntary waiver of the right can be severe, both to liberty and health. Underlying the deepening link between unplanned pregnancy and poverty (37) is the lack of even basic sex education for many women facing a decision to terminate, making the disclosure of timely, accurate, and objective information vital. (38) It is a mistake to set abortion care apart from a growing field of areas where disclosures are considered to be important for consumer and patient protection. Indeed, the decision-making around abortion care--like decisions around other sensitive medical decisions--may benefit from a uniform, mandatory disclosure. To discard such a regulatory technique out of hand acts not to protect abortion rights, but to further de-normalize them.

This Article addresses the public health, consumer, and doctrinal benefits of abortion disclosure laws that are truly protective of a woman's right to choose. Part I briefly addresses existing abortion disclosure laws and the attitude of courts toward those laws in recent decisions. It also examines the academic commentary on such laws and the literature's limited discussion of positive actions state and local governments should take in light of Casey and similar cases.

In Part II, the Article makes the case that mandating truly informative abortion disclosures would result in health gains both for individual women and for public health writ large. Public health disclosures are in the strike zone for what states and localities do often and do well. Mandating a truthful abortion disclosure requirement would not only result in direct public health gains arising from women being accurately informed about the abortion right and procedures available, but would also act to further normalize abortion within the scope of women's health care and public health discourse more generally. Existing disclosure requirements...

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