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

The Eighth Circuit Court of Appeals gave constitutional protection to misleading women seeking abortion care. Now it will almost certainly rest on Justice Kennedy to address challenges to informed consent laws, problems with which can be traced back to him in the first place.

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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.

Regulations that dictate what doctors must tell a woman seeking an abortion are based on two competing constitutional principles. On the one hand, an abortion restriction cannot place an undue restriction on a woman’s right to choose, and on the other doctors cannot be “compelled” to speak in a commercial context except under certain conditions. For such a regulation to be constitutional it cannot impinge on either of these constitutional protections.

In the context of the South Dakota and other “informed consent” restrictions, that means regulations that script disclosures for doctors or detail what information must be disclosed can only be constitutional if the information is truthful and not misleading and designed to help a woman understand the “full complexity” of her decision. It’s a standard first fully articulated by Justice Anthony Kennedy in Planned Parenthood v. Casey and, on it’s face, is not much more than any other informed consent requirement for any other medical procedure.

But because we’re talking about abortion there’s more.

Thanks also to Justice Kennedy, this time in Gonzales v. Carhart, the case that upheld the constitutionality of the federal partial birth abortion ban, states are free to pass informed consent laws that favor childbirth over abortion. So long as the information isn’t based on a lie, those laws will not be considered an undue burden on women’s right to choose abortion. And, in the process of passing laws that favor childbirth over abortion, states are not restricted to only regulating in areas of medical certainty. In Carhart, Kennedy held that when there’s a lack of medical consensus on an issue, legislators are free to pick the evidence they prefer. Once that choice has been made, should the law favoring childbirth over abortion face a legal challenge, judges are required to defer to those legislative choices, even in the face of a mountain of evidence that legislators’ choice is wrong.

It was an open invitation for anti-choice activists and conservative legislators to start producing their own “evidence” and creating their own facts which were then put in bills that “empowered” women by providing them more information before they could have an abortion. It’s an invitation they accepted with gusto. “Informed consent” for an abortion now requires, depending on the state, a warning that abortions can lead to suicide and a vaginal ultrasound where the doctor performing the ultrasound describes in detail the fetal image, and may include mandate crisis pregnancy center counseling.

In each of those instances doctors go from being an advocate of the patient and a representative of the best possible medical consensus to an advocate for the anti-choice cause. It’s nothing short of a perversion of the doctrine of informed consent and, to make it worse, in each case it is supported by the theory that these laws empower women.

In no other medical context do we regulate informed consent disclosures the way we do in abortion cases. The standard of care for medical professionals is to advise of any reasonable medical risk. If suicide was a reasonable medical risk associated with abortion then doctors would already have an obligation to disclose it in the context of a consultation. That this is not standard medical practice but one invented by anti-choice legislators says all that needs to be said about the truthfulness of these disclosures or the necessity of these practices.

This is an issue that will likely be settled by the Supreme Court. This decision, the 5th Circuit decision upholding mandatory vaginal ultrasounds, as well as the vaginal ultrasound case in the 4th Circuit Court of Appeals out of North Carolina all revolve on this issue of “empowering” women by subjecting them to unnecessary and medically- inaccurate, indeed outright false, information in the course of obtaining their informed consent for an abortion. Should the 4th Circuit Court of Appeals rule against North Carolina’s ultrasound law, Supreme Court intervention is all but a done deal.

Which means it all rests in Justice Kennedy’s hands. Again.