Misinformed consent

Today the 8th Circuit Court of Appeals overturned a lower court injunction, allowing South Dakota’s “informed consent” legislation to take effect. The legislation requires doctors to inform women seeking abortions that the procedure “ends a human life.” Because, you know, women are stupid and are just getting abortions willy-nilly, without thinking about it much. We need to be told “the truth,” because clearly no woman is aware that carrying a pregnancy to term is an option.
Last April, Sarah Blustain wrote about this case and other “informed consent” laws for the Prospect:

This line of thinking makes clear that women are too ignorant to realize that they are carrying some sort of nascent life in them, and too weak to possibly decide for themselves whether to have an abortion. Even worse, drafters of the South Dakota law do not think women are competent to state whether they have absorbed all of this helpful state information properly: The law would require the doctor to certify, in writing, that he “believes she [the pregnant woman] understands the information imparted.”
“Informed consent is good,” says Yale’s Reva Siegel (who wrote about these issues with me in TAP last year), “but not if the only abortion decision the movement recognizes as ‘informed’ is the decision to carry a pregnancy to term; if this is the premise on which the regulation and litigation rests, then the law is premised on an offensive view of women seeking abortion — weak and confused and failing to conform to their natural role as mothers — and will function to pressure and intimidate those women.”

Ugh. The case is now headed back to the lower court.
Related:
The politics of “informed consent”
Mandatory ultrasounds and “informed consent”

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13 Comments

  1. A male
    Posted June 27, 2008 at 5:51 pm | Permalink

    “The law would require the doctor to certify, in writing, that he ‘believes she [the pregnant woman] understands the information imparted.’”
    As I have stated elsewhere, the business of health care is so cover one’s ass that informed consent has become a standard. Of course informed consent is appreciated when care providers are in a position to manipulate potential clients (i.e. into costly, risky, unnecessary procedures like cesareans) and clients are in need of protections (e.g., they do not speak English, are of a culture that is usually deferential to health care professionals, or are lacking in medical or technical knowledge), but not so at other times when a client is sure of what they want, like a scheduled abortion.
    That said, I naturally disagree with the obvious politics involved in creation of laws specifically targeting birth options or abortions, promoting unsubstantiated views such as it “ends a human life.” They should stick to findings supported by reputable, verifiable research. Patients may experience x; y is a rare but possible side effect. How rare? z percent in a study of 5,000 patients. If women with an unremarkable pregnancy, or with a previous c-section, or seeking an abortion, wishes to practice choice in her options, she should be allowed to do so.

  2. Posted June 27, 2008 at 5:57 pm | Permalink

    This is a disappointing decision and a very troubling law. For those curious about the details (but not interested in reading a long, dense court opinion) I’ve just posted about the decision at my blog.

  3. catspaw
    Posted June 27, 2008 at 6:37 pm | Permalink

    dykelawyer,
    For the ignorant (me!) what’s the address for your blog?

  4. Posted June 27, 2008 at 7:14 pm | Permalink

    And how many women and men are informed as to what to expect once they have a kid? A parenting course was offered as an elective in my high school (I think it’s a good idea to talk about parenting/child development in health/family life class), and only the Psychology and Special Education students had to take a Child or Human Development course in undergrad. One can argue that people aren’t making an informed decision when having a child, since most people don’t seem to know what they’re in for. But you don’t see anyone at Planned Parenthood telling pregnant women, “You know, it’s only going to get more difficult from here. Are you sure you know what you’re doing?”

  5. pull_rank
    Posted June 27, 2008 at 10:42 pm | Permalink

    catspaw,
    Click on the dykelawyer username and it’ll take you to the blog.

  6. Leslie
    Posted June 28, 2008 at 12:52 am | Permalink

    So how come when women go in saying they want to have a baby, there are no doctors saying “Are you sure? Maybe you should consider an abortion!” ?
    Not that I think they should ever do this, but it’s such bullshit for them to say these women need to be “informed” when they clearly only want to “inform” them of ONE acceptable option.

  7. Leslie
    Posted June 28, 2008 at 12:57 am | Permalink

    So how come when women go in saying they want to have a baby, there are no doctors saying “Are you sure? Maybe you should consider an abortion!” ?
    Not that I think they should ever do this, but it’s such bullshit for them to say these women need to be “informed” when they clearly only want to “inform” them of ONE acceptable option.

  8. ouini
    Posted June 28, 2008 at 7:55 am | Permalink

    “Today the 8th Circuit Court of Appeals overturned a lower court injunction, allowing South Dakota’s “informed consent” legislation to take effect.”
    Okay, I’m not a lawyer, and this sentence was ambiguous — did the 8th Circuit allow SD’s legislation to take effect, or did they overturn the injunction which used to allow it to take effect?

  9. Maggie
    Posted June 28, 2008 at 7:52 pm | Permalink

    ouini–just by the language, the comma makes me think that overturning the lower court’s decision allowed the legislation to take effect. So the 8th Circuit allows the law.
    But that’s just by the grammar. Lord knows enough people wouldn’t know where to put a comma if their lives depended on it. (/bitter editor’s rant)

  10. Father Time
    Posted June 29, 2008 at 3:18 am | Permalink

    How stupid do they think some people are?
    ‘It will end a human life’
    ‘Really? I thought that was a basketball growing inside of there.’
    Government pressuring people in what could be a very delicate situation. That’s never good.

  11. Airina
    Posted June 29, 2008 at 12:43 pm | Permalink

    Actually, what you’ve stated is incorrect. The legislation does not ‘[require] doctors to inform women seeking abortions that the procedure “ends a human life.”‘
    According to NARAL, A woman [in South Dakota] may not have an abortion until at least two hours after the physician informs the woman, in writing, of the following: (1) the name of the physician who will perform the abortion; (2) abortion ends “the life of a whole, separate, unique, living human being;” (3) she has a relationship with the “unborn human being” and that this relationship is protected under law; (4) the relationship and the constitutional rights she enjoys with regards to that relationship will end when she has an abortion; (5) the medical risks of abortion and those associated with carrying the pregnancy to term; and (6) the gestational age of the “unborn child.”

  12. A male
    Posted June 29, 2008 at 12:55 pm | Permalink

    “One can argue that people aren’t making an informed decision when having a child, since most people don’t seem to know what they’re in for.”
    You’re exactly right. Nine years with kids, and 11 years into marriage, I’m still making it up as I go along. Which is why, cheesy as it can be, I support measures like home ec. classes requiring kids to care for raw chicken eggs or plastic dolls for a week, or that new NBC reality show “The Baby Borrowers” mentioned in the community blog, where teens get thrown into “real life” with house, family, job search.

  13. Alexandra
    Posted June 29, 2008 at 7:34 pm | Permalink

    My two best friends and I all got pregnant in the few years after high school. They opted for abortions, and I opted to have a baby. I would think that my choice to have the baby (who is now three) affects me more on a day to day basis than their choice does them. I think that all three of us believe that we made the right choices for ourselves, but my life changed a lot more than theirs, so, yeah, if “they” are going to force women to “really think” about their decisions to abort, they should also talk about decisions to carry to term. Because labor (which hurts A LOT more than I’m betting an abortion does, besides carrying more risks to life and limb) is really only the beginning of the trials of parenting (which I wouldn’t give up, but it’s not for everybody.)

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