Commentary Abortion

Perverting Informed Consent: The South Dakota Court Decision

Maya Manian

Numerous anti-choice laws—like South Dakota’s—exploit informed consent doctrine to further goals antithetical to the notion of autonomy that these laws pretend to promote.

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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South Dakota is not alone in its misuse of traditional medical principles in regulating abortion care. State abortion laws are rife with mis-information and shaming rituals masquerading as protections of a “woman’s right to know.” For example, efforts to mandate clinically unnecessary ultrasounds have also been enacted under the guise of protecting abortion patients’ right to information, even though mandatory ultrasounds impose a medical procedure in violation of a patient’s right to refuse treatment protected by informed consent law.  

These abortion regulations belie a deep suspicion of women as medical (and moral) decision-makers. Their proponents claim to follow the general principle of protecting patients’ interests in informed decision-making, but they seek to apply that principle differently to women seeking abortion care. South Dakota’s legislation and other similar anti-choice “informed consent” laws aim not at preserving women’s autonomy, but at imposing the government’s normative views about what decisions women should make.  

Numerous anti-choice laws—like South Dakota’s—exploit informed consent doctrine to further goals antithetical to the notion of autonomy that these laws pretend to promote.  South Dakota’s disingenuous assertions about protecting women’s well-being by mandating mis-information mask its true purpose—to thwart access to abortion and discourage women from seeking abortion care. South Dakota thus ignores the lesson learned long ago within the law of informed consent—that the patient should have the prerogative to determine for herself where her best interests lie.

News Law and Policy

Anti-Choice Group: End Clinic ‘Bubble Zones’ for Chicago Abortion Patients

Michelle D. Anderson

Chicago officials in October 2009 passed the "bubble zone" ordinance with nearly two-thirds of the city aldermen in support.

An anti-choice group has announced plans to file a lawsuit and launch a public protest over Chicago’s nearly seven-year-old “bubble zone” ordinance for patients seeking care at local abortion clinics.

The Pro-Life Action League, an anti-choice group based in Chicago, announced on its website that its lawyers at the Thomas More Society would file the lawsuit this week.

City officials in October 2009 passed the ordinance with nearly two-thirds of the city aldermen in support. The law makes it illegal to come within eight feet of someone walking toward an abortion clinic once that person is within 50 feet of the entrance, if the person did not give their consent.

Those found violating the ordinance could be fined up to $500.

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Harassment of people seeking abortion care has been well documented. A 2013 survey from the National Abortion Federation found that 92 percent of providers had a patient entering their facility express personal safety concerns.

The ordinance targets people seeking to pass a leaflet or handbill or engaging in “oral protest, education, or counseling with such other person in the public way.” The regulation bans the use of force, threat of force and physical obstruction to intentionally injure, intimidate or interfere any person entering or leaving any hospital, medical clinic or health-care facility.

The Pro-Life Action League lamented on its website that the law makes it difficult for anti-choice sidewalk counselors “to reach abortion-bound mothers.” The group suggested that lawmakers created the ordinance to create confusion and that police have repeatedly violated counselors’ First Amendment rights.

“Chicago police have been misapplying it from Day One, and it’s caused endless problems for our faithful sidewalk counselors,” the group said.

The League said it would protest and hold a press conference outside of the Planned Parenthood clinic in the city’s Old Town neighborhood.

Julie Lynn, a Planned Parenthood of Illinois spokesperson, told Rewire in an email that the health-care provider is preparing for the protest.

“We plan to have volunteer escorts at the health center to make sure all patients have safe access to the entrance,” Lynn said.

The anti-choice group has suggested that its lawsuit would be successful because of a 2014 U.S. Supreme Court decision that ruled a similar law in Massachusetts unconstitutional.

Pam Sutherland, vice president of public policy and education for Planned Parenthood of Illinois, told the Chicago Tribune back then that the health-care provider expected the city’s bubble zone to be challenged following the 2014 decision.

But in an effort to avoid legal challenges, Chicago city officials had based its bubble zone law on a Colorado law that created an eight-foot no-approach zone within 100 feet of all health-care facilities, according to the Tribune. Sidewalk counselor Leila Hill and others challenged that Colorado law, but the U.S. Supreme Court upheld it in 2000.

News Health Systems

The Crackdown on L.A.’s Fake Clinics Is Working

Nicole Knight

"Why did we take those steps? Because every day is a day where some number of women could potentially be misinformed about [their] reproductive options," Feuer said. "And therefore every day is a day that a woman's health could be jeopardized."

Three Los Angeles area fake clinics, which were warned last month they were breaking a new state reproductive transparency law, are now in compliance, the city attorney announced Thursday.

Los Angeles City Attorney Mike Feuer said in a press briefing that two of the fake clinics, also known as crisis pregnancy centers, began complying with the law after his office issued notices of violation last month. But it wasn’t until this week, when Feuer’s office threatened court action against the third facility, that it agreed to display the reproductive health information that the law requires.

“Why did we take those steps? Because every day is a day where some number of women could potentially be misinformed about [their] reproductive options,” Feuer said. “And therefore every day is a day that a woman’s health could be jeopardized.”

The facilities, two unlicensed and one licensed fake clinic, are Harbor Pregnancy Help CenterLos Angeles Pregnancy Services, and Pregnancy Counseling Center.

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Feuer said the lawsuit could have carried fines of up to $2,500 each day the facility continued to break the law.

The Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care. Unlicensed centers must disclose that they are not medical facilities.

Feuer’s office in May launched a campaign to crack down on violators of the law. His action marked a sharp contrast to some jurisdictions, which are reportedly taking a wait-and-see approach as fake clinics’ challenges to the law wind through the courts.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before the U.S. Court of Appeals for the Ninth Circuit.

Some 25 fake clinics operate in Los Angeles County, according to a representative of NARAL Pro-Choice California, though firm numbers are hard to come by. Feuer initially issued notices to six Los Angeles area fake clinics in May. Following an investigation, his office warned three clinics last month that they’re breaking the law.

Those three clinics are now complying, Feuer told reporters Thursday. Feuer said his office is still determining whether another fake clinic, Avenues Pregnancy Clinic, is complying with the law.

Fake clinic owners and staffers have slammed the FACT Act, saying they’d rather shut down than refer clients to services they find “morally and ethically objectionable.”

“If you’re a pro-life organization, you’re offering free healthcare to women so the women have a choice other than abortion,” said Matt Bowman, senior counsel with Alliance Defending Freedom, which represents several Los Angeles fake clinics fighting the law in court.

Asked why the clinics have agreed to comply, Bowman reiterated an earlier statement, saying the FACT Act violates his clients’ free speech rights. Forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs,” Bowman said.

Reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, Googling “abortion clinic” might turn up results for a fake clinic that discourages abortion care.

“Put yourself in the position of a young woman who is going to one of these centers … and she comes into this center and she is less than fully informed … of what her choices are,” Feuer said Thursday. “In that state of mind, is she going to make the kind of choice that you’d want your loved one to make?

Rewire last month visited Lost Angeles area fake clinics that are abiding by the FACT Act. Claris Health in West Los Angeles includes the reproductive notice with patient intake forms, while Open Arms Pregnancy Center in the San Fernando Valley has posted the notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”

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