About Informed Consent Policies

As a medical policy, informed consent was historically used to empower patients’ rights to bodily autonomy and “self determination given accurate, unbiased information” (Manian 2009, p. 237).  Grounded mainly in cases of assault and battery of physicians who operated on unwilling or unknowing patients, informed consent policies of medical procedures represent an important aspect of a patient’s right to bodily integrity.  Informed consent is also the right to accept or refuse a medical procedure based on reasonable, medically accurate and nonmisleading facts.  However, in the abortion context, informed consent takes on new meanings and uses.  Ultimately, informed consent served two main objectives: to acquire a patient’s consent, and for doctors to “‘disclose such information to patients as will enable them to participate knowledgably in making decisions about treatment.’” (McMurray Roe, 2009, p. 209, quoting Berg, et al, 2001).  Manian (2009) details the judicial history of informed consent for abortion as shifting dramatically between Roe and Casey.  In the cases involving challenges to informed consent policies that states attempted to enact post-Roe, the US Supreme Court had specifically upheld the right to abortion as a fundamental right – access to which could not be interrupted unless it met the standard of a “compelling state interest” (p.243, quoting Roe at 169-71).  Several cases came before the Court subsequent to Roe – each of which presented an opportunity for informed consent policies to be accepted, however, each were rejected for failing to present a compelling state interest.[1]

In Planned Parenthood v. Casey (1992), the U.S. Supreme Court affirmed three principles central to the constitutionality of informed consent laws: that the state has an interest in fetal life from the moment of conception; that the state could prefer childbirth over abortion; and that the state could enact regulations to ensure that a woman’s choice was “thoughtful and informed” (Casey, 916). These principles, the court argued, were consistent with both a woman’s right to reproductive choice and doctor-patient medical privacy.  Furthermore, the Court argued that neither the state’s attempts to dissuade a woman from abortion nor the state’s mandate that a specific body of information be given to a woman invalidated a state’s informed consent law.  As the Casey decision stated: “Measures designed to advance this interest should not be invalidated if their purpose is to persuade the woman to choose childbirth over abortion” (Casey 878). As the Court held: “[e]ven in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term” (Casey 873).

Ultimately, as informed consent policies flourished at the state level as backlash to Roe, informed consent material mandates—providing women with a physical booklet, in addition to a physician’s oral description—followed Casey.  The states had judicial support from the highest court asserting their right to regulate abortion within the limits of the undue burden standard. (See table 1 below).

Table 1: State Adoption of Informed Consent Laws

Most recently, in 2012 an en banc panel of 8^th Circuit Court judges heard another informed consent case, stemming from a South Dakota informed consent policy in which women would have to be made aware of increased risk of suicide after abortion.  This case, Planned Parenthood v. Rounds (2012)[2], Planned Parenthood argued that not only was the suicide incidence misleading and medically unfounded, but that mandating doctors to repeat this information would amount to a violation of their free speech.  Informed consent, having been subject to the relaxed Casey doctrine, was now open for interpretation.  The Court ultimately found that the suicide advisory was constitutional – not just under Casey, but under Gonzales v. Carhart (2007)[3].  Though Carhart was not an informed consent case, the judges felt that it was applicable here.  In Carhart, the US Supreme Court had supported a ban on a particular abortion procedure, citing medical uncertainty about the safety – physical and psychological – of that procedure.[4]  They found that a ban on D&E abortions did not violate the undue burden standard “…because state and federal legislatures have ‘wide discretion to pass legislation in areas where there is medical and scientific uncertainty.’” (Harris 2013, p.21, quoting Carhart, at 163-4).  The Rounds Court held that there was medical uncertainty about the connection between suicide and abortion, and therefore could reasonably uphold the South Dakota suicide advisory as part of informed consent law.  However, as Harris notes, this court erred in its decision; the Carhart decision was particularly related to banning an abortion procedure, to which there were alternatives.

At issue was the testimony heard before the U.S. Congress – which had the opportunity to hear that there was medical uncertainty regarding the safety of the D&E procedure.  In Rounds, however, the “women seeking abortions will not be made aware of the existence of medical uncertainty surrounding the association between abortion in suicide” (p. 24).  It would present as nonmisleading, scientific fact as part of informed consent policy.  This again, brings up Manian’s question: how could an informed consent policy be nonmisleading when it is biased?  This also conjures up questions surrounding the right to free speech of abortion providers.  Recall that informed consent policy for other medical procedures was meant to strike a balance between the doctor in his or her expert medical opinion, and a patient’s autonomy (McMurray Roe, 2009, p. 208).  The US District Court in South Dakota, upon first hearing Rounds, held that “portions of the Act comprised unconstitutional compelled speech as they required doctors to express the state’s views as if they were their own opinion” (p. 17)[5].  McMurray Roe (2009) contends that the exceedingly scripted informed consent policies from state legislatures can have enormous policy consequences that deviate from the original intention and use of informed consent for medical procedures.  McMurray Roe writes, “rather than promoting a process, these states have transformed informed consent for specific procedures into something more akin to a Miranda warning – an approach that hardly comports with mainstream views about why informed consent exists and how it is to be used” (p. 224).

[1] Specifically, the cases were Danforth, Akron v. Akron, and Thornburgh.

[2] Planned Parenthood Minnesota, North Dakota, South Dakota v. Mike Rounds (686 F.3d 889 (8th Cir. 2012)

[3] Gonzales v. Carhart. (550 U.S. 124, 163 S. Ct. 1610 (2007))

[4] This is despite several lower courts having found voluminous medical accounts of D&E being a safe procedure (McMurray Roe, 2009, p.217).

[5] Though Harris (2013) points out the District Court’s initial opinion had been remanded by the Eighth Circuit Court, and upon revisiting, they found it to be unconstitutional while granting an injunction due to the misleadingness of the suicide advisory (p. 17-18).