The Abortion Informed Consent Debate: More Light, Less Heat.

ion to a baby in the eyes of the potentially aborting mother," and thereby has an emotional impact far beyond its factual impact.136 While this may be true, excessive reliance on such arguments in the context of abortion and reproductive decision-making runs the risk of supporting entrenched assumptions about women's emotional vulnerability-assumptions that critics of abortion disclosure laws expressly, and rightly, reject.' 37 Consider, for example, Maya Manian's thoughtful analysis of the Supreme Court's decision in Carhart, which she criticizes, in part, on the grounds that the Court's opinion treats women as "less trustworthy decision-makers."1 38 Manian and others note that in no other context have courts been willing to restrict the availability of a medical procedure on the basis that patients might later come to regret their choice. 13 9 Similarly, in arguably no other context do physicians base their decision to use medical imaging, such as X-rays, on the patient's emotional vulnerability. Is there a happy middle ground between acknowledging the potential dangers of excessive emotional influence and avoiding characterizations of women as particularly sensitive to emotional imagery? One solution may be found in the doctrine of patient waiver, an important but rarely used element of informed consent law and theory. According to the waiver doctrine, patients may waive their right to informed consent as an exercise in autonomy. For example, a patient who is committed to undergoing a medical procedure, regardless of the risks or costs, may waive her right to receive information from the physician and simply proceed with the treatment. Once a patient has exercised her right to waiver, it is wrong for the physician to try to share information with the patient against her will. Of course, physicians are under no moral or legal obligation to treat patients who waive their right to informed consent-one can certainly imagine a physician refusing to provide care to a patient who is unwilling to listen to basic information about a procedure and its risks. However, this is the choice of the individual physician and impacts only the availability of treatment; it does not impact the patient's right to shield herself from information she would prefer not to know. In this regard, any law that forces a physician to provide a woman seeking an abortion with specific information, particularly against her will-be it ultrasound images, images of fetal development, or descriptions of the fetus-is legally and ethically problematic. The challenge is finding a way to explain to a patient what information is available to her 136 Sanger, supra note 3, at 378. 137 See generally Dresser, supra note 3, at 1599 ("[The special-protection rationale imputes to women a psychological vulnerability that lacks evidentiary support."). 138 Manian, supra note 3, at 255. 139 Id. at 257-58; Dresser, supra note 3, at 1599. [Vol. 21:1 HeinOnline -21 Cornell J. L. & Pub. Pol'y. 34 2011-2012 THE ABORTION INFORMED CONSENT DEBATE without running afoul of her right to refuse information, but this challenge is resolvable. One way of resolving this would be to begin the informed consent discussion by asking the patient what information she considers relevant and what information she would prefer not to hearalthough this approach, applied in the abortion context exclusively, again runs the risk of buying into assumptions about women's emotional vulnerability. Perhaps another alternative is to take a cue from identity and discrimination theory: to the extent we believe that women requesting abortions are expressly rejecting their maternal identity, we should reject mandated disclosures that reinforce this identity against the patient's will.140 E. Assumptions about Women The goal of informed consent is to encourage autonomous medical decision-making. If we, as a liberal and enlightened society, believe that women are equally as capable as men in this regard, it would be inappropriate to enact abortion disclosure laws that rely on outdated and discriminatory assumptions about women's capacity for rational thought. Of course, few proponents of abortion disclosure laws are willing to defend these laws explicitly on the basis of backward opinions about women. Indeed, one would hope and expect that modern policymakers do not maintain such opinions or, if they do, that they recognize the inappropriateness of relying on such opinions when enacting legislation. To the extent that informed consent laws appear "unique" to the context of abortion, this Article argues that it is most likely because of the inherent controversy about the sanctity of life underlying the abortion debate,141 140 That is, while physicians would still be required to disclose clinically-relevant information about the abortion procedure, they would be limited in their ability to make disclosures aimed at reinforcing or encouraging the maternal-fetal relationship, on the grounds that a woman seeking an abortion has already rejected the maternal identity. See, e.g., Law, supra note 28, at 297 ("Typically, women go to abortion clinics because they believe that they want an abortion."). This limitation would likely bar the use of ultrasound images that arguably transform the fetus "from an abstraction to a baby in the eyes of the potentially aborting mother[." See supra note 132 and accompanying text. For mandated disclosures about the relationship between mother and fetus, see supra note 23 and see accompanying text for information about social supports for women with children. Many thanks to Elizabeth Glazer for encouraging me to explore this idea in the context of identity theory. 141 See Planned Parenthood of Heartland v. Heineman, 724 F. Supp. 2d 1025, 1044 (D. Neb. 2010). In this case, the court noted, No . . . legislative concern for the health of women, or of men, has given rise to any remotely similar informed-consent statutes applicable to other medical procedures, regardless of whether such procedures are elective or non-elective, and regardless of whether such procedures pose an equal or greater threat to the physical, mental, and emotional health of the patient. From a plain reading of the language of the bill, and the absence of any similar statutory 'protections' for the health of patients in other 2011] 35 HeinOnline -21 Cornell J. L. & Pub. Pol'y. 35 2011-2012 36 CORNELL JOURNAL OF LAW AND PUBLIC POLICY rather than overt or even implicit sexism, as some have suggested.1 2 Evidence in support of this argument can be found in the trend towards increased regulation of the process of informed consent in the context of extraction, research, and treatment involving embryos and embryonic stem cells-a similarly controversial area. 143 If there is no underlying discriminatory intent behind abortion informed consent laws, might we object to them on the basis of discriminatory effect? An analogy could be drawn to the Civil Rights Act, which. allows a plaintiff to make a claim for racial discrimination based upon a showing of disparate impact; the plaintiff may then recover only if the defendant is unable to identify a legitimate reason for its policy or if the plaintiff can show that the defendant has failed to adopt a reasonable alternative policy that does not have a discriminatory effect.144 The undue burden standard adopted by the Supreme Court in Casey also recognizes that a burdensome effect can be just as problematic as a burdensome intent. In Casey, the Court defined "undue burden" as "shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.""4 Again, it is difficult to make any conclusive judgments about the legal or ethical validity of abortion disclosure laws on these grounds, and perhaps the strongest claim to be made is that each law ought to be evaluated independently for the possibility of discriminatory intent or effect.