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Smoking, Abortion, and the Right’s Free Speech Lies: How a Potential Supreme Court Pick Is Undermining Informed Consent

12:38 pm in Uncategorized by RH Reality Check

Janice Rogers Brown

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Just before Labor Day, the United States Court of Appeals for the District of Columbia sent shock waves through the public health community when it ruled that the Federal Drug Administration couldn’t require cigarette manufacturers to print graphic images and warnings on the effects of smoking on packaging because to do so violated the free speech rights of the tobacco industry. On the surface the case and the court’s opinion may appear to have nothing to do with abortion rights, but they do.

The government has, through ever-restricting informed consent laws, permitted the regulation of commercial speech in the context of abortion access for decades. That regulated speech has at times addressed the use of graphic images and warnings as a way to dissuade a woman from having an abortion. When the government seeks to regulate speech in this way it is imposing a preference and a bias on the speaker and is subject to some specific constitutional guidelines and the government must have a very good reason for either compelling individually to express certain views or subsidizing speech to which they object. This is true whether the speaker is an individual or a corporation — compelling speech is supposed to be very tricky stuff.

In the context of the cigarette warning case, the court makes it clear just how tricky that is. “No one doubts the government can promote smoking cessation programs; can use shock, shame, and moral opprobrium to discourage people from becoming smokers; and can use its taxing and regulatory authority to make smoking economically prohibitive and socially onerous. And the government can certainly require that consumers be fully informed about the dangers of hazardous products. But this case raises novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest — in this case, by making “every single pack of cigarettes in the country [a] mini billboard” for the government’s anti-smoking message” the court said.

Framed another way, “how much leeway should this Court grant the government when it seeks to compel a product’s manufacturer to convey the state’s subjective — and perhaps even ideological — view that consumers should reject this otherwise legal, but disfavored, product?”

The central question in this case is the central question before courts in every challenge to an informed consent restriction: how much leeway should the government get in pushing disclosures designed to get consumers to reject an otherwise legal but disfavored procedure?

In abortion rights cases the Supreme Court has made that answer clear — the government gets a considerable amount of leeway with the only prohibitions on the disclosures or related images being they must be truthful and they must not mislead. But even under that very broad umbrella, the courts have let stand mandated disclosures of discredited and medically-disproven links between abortion and suicide, the imposition of forced ultrasounds, and the use of graphic imagery on abortion-related material because those restrictions furthered the state’s declared interest in furthering embryonic or fetal life.

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The Slippery Slope of “Informed Consent” Abortion Laws

12:55 pm in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

A lego ultrasound diorama.

Playing games with women's health? (Photo: Erik / Flickr)

Abortion restrictions passed as informed consent laws represent some of the worst cynicism in the anti-choice movement, so it should come as no surprise that in their 2012 party platform Republicans enthusiastically “salute” those states that passed such laws. The salute has no real immediate effect, but the inclusion is telling of the Republican drive to consign women to second place citizens under the law.

It’s not just that Republican leadership hopes to inspire copycat bills by applauding the mandatory ultrasound laws in places like Texas and Virginia, or mandatory disclosure law in South Dakota. That much is a given. And it’s not even that Virginia Gov. Bob McDonnell’s inclusion of it in the platform smacks of narcissistic self-promotion at the expense of women’s lives. It’s that these laws, in ways unlike other forms of abortion restrictions,  return to the legal understanding of women as an inferior class of persons, in need of both constant monitoring and assistance as well as oversight and regulation. Once re-codified in the law that is a world view that is impossible to contain to the discreet category of abortion restrictions.

That these laws are all passed and under the guise of “empowerment” only underscores the game at hand. In Planned Parenthood v. Casey Justice Anthony Kennedy’s opinion defends a series of abortion restrictions including forcing doctors to show women materials with graphic pictures of aborted fetuses as part of obtaining a woman’s informed consent for an abortion even when those materials have no direction relation to the health of the woman related to the procedure. The reason Justice Kennedy found this kind of practice okay was because it furthered the state’s interest in protecting the life of the unborn.

That disconnect–that the government can mandate procedures and disclosures that do not even have to be directly related to the health of the woman–in the context of securing informed consent but in the name of protecting potential life, has all but rendered informed consent all but meaningless.

This leaves women unable to rely on doctors and nurses, their advocates in the health care system for objective and unbiased information. It means that women must second guess every diagnosis and recommended course of treatment in states with these kinds of informed consent restrictions because the motive behind those restrictions is not, as the courts try to claim, empowering women but advocating against women’s ultimate control over their fertility and their bodies.

From Casey’s support of mandating disclosures related to fetal remains comes the Fifth Circuit’s endorsement of transvaginal ultrasounds. Citing Casey for authority in upholding the law, Judge Edith Jones posits that this latest invasive and unnecessary procedure is nothing more than the logical, technological evolution of the pictures in Casey and necessary for women to achieve full appreciation of the decision they are about to make. And from there we get the Eighth Circuit Court of Appeals approval of mandating disclosure of a link between abortion and suicide, despite the fact that no such link exists because this kind of information is “helpful” to women.

When the national political leadership celebrates these achievements we need to ask what comes next. If women are unable to make fundamental decisions about their health and future without substantial “assistance” from the state, can they make decisions about transferring property? Or electing representatives? it is not hyperbole to suggest a slide away from true agency in the context of informed consent for abortion leads to a slide away from true agency in other areas of the law where consent is required.

So while it is tempting to brush off the salute to informed consent laws as nothing more than political pandering and posturing we simply cannot do so. Rather than pandering and posturing the salute represents a clear signal of the direction conservatives intend to drive women’s rights, and there is no reason to think they will simply stop at curtailing reproductive rights.

Perverting Informed Consent: The South Dakota Court Decision

12:29 pm in Uncategorized by RH Reality Check

Written by Maya Manian for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

A lego ultrasound diorama.

Playing games with women's health? (Photo: Erik / Flickr)

Informed consent is one of the cornerstones of health-care law and its basic principles have been well-established for decades. Informed consent law reflects the fundamental notion that every competent adult has a right to make the ultimate decisions about her healthcare that will affect her life prospects. A single driving goal animates informed consent law — respect for patient autonomy. Informed consent law preserves patient autonomy by protecting the patient’s bodily integrity and self-determination.

Canterbury v. Spence, a leading case on informed consent, set forth the key principle that “it is the prerogative of the patient” to decide “the direction in which his interests seem to lie.” Thus, the doctrine of informed consent compels the disclosure of accurate medical information consistent with the expert knowledge of the medical community.

This rule ensures that patients receive sufficient information to make their own decisions about whether to consent to medical treatment. Informed consent law’s long-established principles have been perverted in the context of abortion legislation. Anti-choice laws claiming to ensure well-informed decisions for women in fact misuse informed consent terminology to further goals antithetical to the imperatives animating informed consent law.

In an en banc opinion, the Eighth Circuit recently upheld South Dakota’s mandate that physicians inform women seeking abortion care that “an increased risk of suicide ideation and suicide” is a known risk of the abortion procedure. Responding to the Eighth Circuit’s holding, South Dakota Attorney General Marty Jackley declared, “Today’s decision supports the Legislature’s goal of encouraging women seeking an abortion to make informed and voluntary decisions.” Although this statement invokes notions of patient autonomy, South Dakota’s abortion law actually turns on its head informed consent law’s respect for patient self-determination through the provision of accurate, relevant information. As Jennifer Keighley has summarized, South Dakota’s claims about abortion and suicide risk are scientifically dubious. While Planned Parenthood v. Casey permitted abortion-specific informed consent laws, it emphasized that only “truthful, nonmisleading” information would be constitutionally permissible.  But the weight of medical evidence indicates that South Dakota’s legislation is untruthful and misleading.  The Eighth Circuit’s decision to uphold medically-inaccurate information is not surprising, however, given that a similarly ideologically divided court previously upheld South Dakota’s requirement that physicians inform abortion patients “that the abortion will terminate the life of a whole, separate, unique, living human being” — hardly the unbiased information demanded by informed consent doctrine.

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When Lying To Women Is Mandated Care: Informed Consent, Abortion, and the Role Played by Justice Kennedy

12:26 pm in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Find all articles about this court decision here.

The federal judiciary is in the process of rendering the idea of “informed consent” in the context of abortion all but nonsensical and there may be nothing we can do about it.

On Tuesday the Eighth Circuit Court of Appeals upheld the constitutionality of a South Dakota law that requires doctors to inform women seeking abortions that they face an increased risk of suicide should they go forward with the procedure. The reason the suicide-link mandate, a provision tied up in litigation since 2005, was deemed acceptable to the seven conservative justices and Reagan appointees, was because the statement was deemed “truthful.”

Of course the “truth” of suicide-abortion link is hardly truth at all. The analysis of data on which the judges was at least partly based is considered so flawed the journal that published the findings originally is considering retracting the article together. In trial and appeal Planned Parenthood and the challengers submitted extensive data to rebut the claim that abortion is linked to suicide in their challenge of the law.

So how was the Eight Circuit able to support such a finding? Thank Supreme Court Justice Anthony Kennedy.

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Private Practice and Public Laws: The Patronizing Lectures that Television Depicts and Texas Now Requires

7:14 am in Uncategorized by RH Reality Check

Last Friday afternoon, I watched an episode of Private Practice that had aired the week before and was not all that surprised when one of the story lines focused on abortion. The show, which follows the lives of a group of doctors in Los Angeles, has dealt with the topic a number of times before.  It is clear that the writers and producers don’t just support a woman’s right to choose but are willing to risk alienating some viewers in order to use the show as a platform to promote reproductive rights.  In fact, though I often find the writing predictable and overly melodramatic (the show is one of those guilty TV pleasures), I think the writers have done a great job with the abortion debate.  They have given characters a chance to express both sides of the issue but in the end they always present well-reasoned, and even well-researched, arguments for why the right to “safe, legal abortions, without judgment” is so important. 

Still, I was struck by one scene in this episode which reminded me of the mandatory “counseling” some states are now making women go through before they can exercise their legal right to terminate a pregnancy. 

The episode, “God Bless the Child,” focused on the clashing views of two OB/GYNs, Dr. Addison Montgomery who performs abortions (and has had one) and Dr. Naomi Bennett who is opposed to abortion for religious reasons.  A patient, Patty, comes to Addison with uterine cramping and stomach pains about a month after having had an early abortion. It turns out the procedure was not done correctly and the woman is now 19 weeks pregnant. Addison explains that she can still legally have an abortion but that at this stage of the pregnancy it is a more complicated procedure. Patty decides to do it, but Naomi approaches her in the waiting room and pretty blatantly tries to talk her out of terminating her pregnancy.

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The Hypocrisy of “Informed Consent” Abortion Laws

7:45 am in Uncategorized by RH Reality Check

Written by Angi Becker Stevens for – News, commentary and community for reproductive health and justice.

Like most people, I don’t spend much time going through my state’s legislative website, reading the actual language of our state laws. When researching the recently proposed abortion restrictions here in Michigan, though, I felt compelled to read the actual abortion regulations as they currently stand—not just a summary, but the actual word of the law. I expected something cold and formal; legal language offering at least a surface-level impression of impartiality. So I was surprised to find, instead, that even the word of the law is actually dripping with rhetoric—and specifically, that it’s nauseatingly constructed on the premise of being “pro-woman.”

Here in Michigan (and I’m sure similar wording exists in many states), our law reads:

“The knowledgeable exercise of a woman’s decision to have an abortion depends on the extent to which the woman receives sufficient information to make an informed choice regarding abortion,”


“The decision to obtain an abortion is an important and often stressful one, and it is in the state’s interest that the decision be made with full knowledge of its nature and consequences,”


“The receipt of accurate information about abortion and its alternatives is essential to the physical and psychological well-being of a woman considering an abortion.”

This notion of informed consent is the justification for a 24-hour waiting period, during which time a physician must, among other things, “provide the patient with a physical copy of a medically accurate depiction, illustration, or photograph and description of a fetus supplied by the department of community health at the gestational age nearest the probable gestational age of the patient’s fetus.”

In the portion of the text aimed at the department of the community health, strict guidelines are set for the specifications of these “educational” materials, ordering the department to:

“Produce medically accurate depictions, illustrations, or photographs of the development of a human fetus that indicate by scale the actual size of the fetus at 2-week intervals from the fourth week through the twenty-eighth week of gestation. Each depiction, illustration, or photograph shall be accompanied by a printed description, in nontechnical English, Arabic, and Spanish, of the probable anatomical and physiological characteristics of the fetus at that particular state of gestational development,” and to “state that as the result of an abortion, some women may experience depression, feelings of guilt, sleep disturbance, loss of interest in work or sex, or anger.”

On a certain level, I can see where the language is almost difficult to argue with: who wants to challenge the idea of merely informing a woman as much as possible about a medical procedure she’s about to undergo?

The kicker, of course, is that there are no laws regulating the specific information that must be given to a patient before undergoing most other medical procedures, even those which are far more invasive and risky than abortion. As most of us who are concerned with reproductive rights are well aware, this language of “informed consent” merely serves as a thinly veiled attempt at shaming women who seek abortion, a shaming made all the more hypocritical when carried out in the supposed name of women’s health and safety. … Read more