Informed Consent: The Abortion Industry’s Achilles’ Heel
by David C. Reardon
I am afraid that many readers will consider the following article to be long, and maybe even “dry!” I apologize to these readers. On the other hand, it is my hope that most readers will recognize that this issue of physician’s duties and patient’s rights truly is the “Achilles’ heel” of the abortion industry. If abortionists were actually held accountable for screening of patients and ensuring that a woman’s consent to an abortion is truly free and informed, they would go out of business. In order to fashion an effective pro-life strategy for the future, pro-life leaders must fully understand the opportunities which the Supreme Court has given us to make abortionists accountable for their actions.
In Planned Parenthood v. Casey, the Supreme Court demonstrated that it was still hostile to laws which would directly protect the rights of the unborn child. But at the same time, the Court approved abortion regulations which are principally intended to protect the rights of the women as patients.
Following this lead, pro-life organizations in several states have successfully lobbied for regulations on the informed consent procedures at abortion clinics. This is a positive development, and should be continued.
But not all informed consent statutes are created equal. Indeed, there is the danger, in some cases, that statutory informed consent requirements may be viewed by the courts as establishing a sufficient standard for informed consent rather than a minimum standard. In such cases, the statute may be construed to protect the abortionist from liability in cases where the patient may have required more information than that specified in the statute. Such would be the case when a woman had physical or psychological characteristics which place her at higher risk of suffering post-abortion complications than a “normal” patient. In such instances, an ill-drafted informed consent law might actually reduce the injured patient’s right to recovery.
It is therefore important for pro-lifers to better understand the abortion patient’s rights as already defined by the judiciary. This is especially so in states where special informed consent legislation is difficult to pass. In these states, existing statutes and legal precedents can effectively be used to defend and expand patient’s rights through civil litigation.
Existing Informed Consent Standards
There are two prevailing standards for informed consent. The first, the so called “traditional” or “community” standard, is physician centered and defined by the common and customary practices in the medical community, or on what a reasonable physician would reveal in a particular situation. The second standard is patient centered, and is defined by what a “reasonable patient” would find relevant to his or her decision to accept or forego a recommended medical treatment. As will be discussed later, because of the unique nature of abortion, Supreme Court rulings may require that in the case of abortion, at least, a patient centered standard for informed consent must be applied. But for the time being, both standards will be discussed.
The traditional, physician centered standard for defining the adequacy of obtaining informed consent is best understood in the context of the trust relationship between the physician and patient: “Where the physician-patient relationship is established, the law imposes on the physician a fiduciary duty of good faith and fair dealing; among other things, this duty requires the physician to inform the patient of the nature of his condition and to obtain informed consent as to future treatment.”(1)
The “reasonable patient” standard has evolved in recognition of the fact that whenever any bias about any medical procedure exists, it tends to produce a bias in favor of underdisclosure of risks, thereby making a “community medical standard” for disclosure inadequate.(2) Courts have ruled that: “As the patient must bear the expense, pain and suffering of any injury from medical treatment, his right to know all material facts pertaining to the proposed treatment cannot be dependent upon the self-imposed standards of the medical profession.”(3) “True consent to what happens to oneself is the exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.”(4) [Italics added] Though the physician may feel strongly about the correct course of action, “it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests lie,” and that requires full disclosure of the nature of the procedure and all the risks and alternatives which a reasonable patient would need to make an informed choice.(5) Even complications occurring only 1% of the time must be disclosed.(6)
In all, fifteen states and the District of Columbia have adopted the “reasonable patient” standard for informed consent, nineteen have adopted an informed consent doctrine based on the fiduciary relationship of the physician and patient, and ten have combined elements of both approaches.(7)
Under both standards for obtaining informed consent, it is not sufficient merely to give a patient a laundry list of potential risks. It is the attending physician’s responsibility to insure that the patient adequately understands the relevant risks and options and has had sufficient time to consider these. These requirements for valid informed consent, understanding and time, are especially important in dealing with teenagers who have developmental limitations which may prevent the patient from fully comprehending and weighing the information as quickly as would an adult.(8) In such cases, the patient may need more detailed explanations and more assistance in reviewing the benefits, risks, and options. Failure to insure that the patient fully understands the risks, or has had adequate time to reach an informed choice, may provide an additional basis of negligence.(9)
Uninformed consent may also occur when a patient is not informed of personal physical or psychological characteristics which would pre-identify the patient as being at higher risk of suffering one or more post-procedural complications. A patient would reasonably expect to be informed of any high risk factors pertinent to his or her case and to receive counseling with regard to alleviating these risks. If the patient was not informed of these high risk factors because the physician failed to identify them during pre-procedure screening, the physician might be guilty of negligence.(10)
If there is inadequate disclosure to a patient, the consent is invalid and the physician’s actions are a form of battery. In such cases, the offenses of negligence and battery are intertwined.(11)
Therapeutic Privilege and Its Limits
Under both informed consent standards, nondisclosure is justified when the information itself “poses such a threat of detriment to the patient as to become unfeasible or contraindicated from a medical point of view.”(12) For example, it may be reasonable to withhold highly stressful information to a cardiac patient which itself cause the onset of a heart attack.
But even when a treatment is lifesaving, the option of withholding potentially upsetting information, commonly referred to as “therapeutic privilege,” is very narrow.(13) This option is narrowed even further in the case of an elective procedure, where by definition the patient may decline the proposed treatment without dire consequences.(14) When the information does not pose a significant health risk, there is no “therapeutic privilege.” Furthermore, no court has ever held a doctor liable for giving too much information.(15) Therefore, it seems reasonable that physicians should err on the side of full disclosure.
When a procedure is elective, then, the only reasons a physician could give for withholding relevant information would be purely self-serving: 1) to save time, or 2) to avoid losing the sale of one’s services.
The application of these principles to the case of abortion is readily apparent. As opposed to therapeutic abortions necessary to save a woman’s life, an elective abortion is, by definition, never life-threatening. In the latter case the withholding of information is never justified. A decision to forego a previously desired abortion after learning of possible risks, even remote ones, is always reasonable.(16) Indeed, the Supreme Court itself has found that abortion involves such emotional and psychological risks that a decision to forego a previously desired abortion may often be the wisest course of action.(17)
Furthermore, since abortion is an elective procedure, an abortion practitioner’s opinion that one or another risk is not yet firmly established, or has not yet been adequately measured, does not relieve him of the responsibility to disclose to the patient that members of the medical community are concerned about this disputed risk. It is the reasonable patient’s right to weigh the evidence for or against a contested abortion complication. This is especially true when the practitioner may be biased against believing in the reality of a certain class of risks, no matter how strong the evidence may be, due to his personal and financial interests in advocating for the abortion option.
The Danger of Bias in the Informed Consent Process
When physicians or counselors withhold information because they fear the information will lead to an “unreasonable” choice for childbirth, they are reflecting their own bias into the decision making process, a bias that has no medical basis. Such bias is of special concern since the majority of abortion patients are ambivalent about their choice, with up to 84% saying they would have kept their pregnancies under better circumstances.(18)
Because the decision to abort is often tentative, or even undertaken solely to please others, “upsetting” information may be exactly what a woman is looking for as an excuse to keep her child when everyone else is pressing her into an unwanted abortion. In some cases, it may be far easier for a reluctant woman to resist a boyfriend who is pushing for an abortion by claiming that, “The doctor says abortion is dangerous.” She may rightly feel that this argument, even if exaggerated, will be more effective than, “I want this baby, even if you don’t.”
Furthermore, biased pre-abortion counseling can, in itself, be injurious. Substantial evidence suggests that inadequate, inaccurate, or biased counseling increases the occurrence and severity of negative post-abortion psychological reactions.(19)
Basic Responsibility for the Decision Rests on the Physician
Contrary to popular notions, abortion is not a constitutional right which women are free to exercise autonomously. A woman’s request for abortion is always subject to the review and recommendation of a physician who bears full responsibility for making that recommendation. This is so because the Supreme Court has repeatedly found that abortion has serious health risks, mental and physical.(20) Therefore, abortion is not an absolute right of a woman but can only be exercised after appropriate and sufficient consultation with a “responsible physician.”(21) This is an important point to understand, especially with regard to abortion malpractice.
According to the Supreme Court, abortion is a medical procedure which women have a protected liberty to seek because of their unique health needs.(22) But this liberty is limited by three factors: 1) the physician’s duty to protect the woman’s health, 2) the State’s interest in protecting the woman’s health, and 3) the State’s interest in protecting potential human life.(23) The first of these limitations is the key to understanding the liability of abortionists.
In describing the duties and obligations of the physician, the Court has been very clear. Abortion is a medical procedure which physicians are free to provide when, in consultation with their patients, it is medically determined to be in their patient’s health interests. This important distinction was made in Roe where the Court concludes its decision with the emphatic statement that “the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.”(24) [Italics added]
Furthermore, the Court has consistently held that abortion involves a medical decision which physicians are obligated to make in light of a broad range of health issues, including physical, mental, social and family planning concerns.(25) Thus, as a health issue, “[T]he attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.”(26) [Italics added]
In order to reach a “medical judgment” that a pregnancy “should” be aborted, the physician is clearly obligated to thoughtfully weigh, on a case by case basis, the risks, benefits, and alternative forms of care. This requirement to make an informed medical judgment is intended to protect women from profiteers and preclude the prostitution of medical skills, which would occur if an abortion were simply provided on request. The role of the physician as a thoughtful protector of the woman’s health is further substantiated when the Court emphasizes its “consistent recognition of the critical role of the physician in the abortion procedure has been based on the model of the competent, conscientious, and ethical physician.”(27)
Clearly, a “competent” and “conscientious” physician would never allow a patient to self diagnose her own health problems, much less prescribe her own treatment. In reserving to the physician the final judgment of when an abortion may be performed, the Court expects the physician to protect the patient from the grievous harm which can result from her own ignorance of potential risks and alternatives. And in all cases, the recommendation for an abortion, formed on the basis of her broadly defined health needs, should be “for the benefit, not the disadvantage, of the pregnant woman.”(28)
In seeking a balance between freedom and safety, the Court has established the “abortion liberty” upon a deliberate intertwining of the patient’s rights and the physician’s duties. In evaluating a patient’s needs, the physician’s recommendation for an abortion is only advisory. His role as medical advisor includes both “assisting the woman in the decision making process and implementing her decision should she choose abortion.”(29) [Italics added] Yet, at the same time, the woman’s right to actually have an abortion must yield to the physician’s duty to safeguard her health.(30) Put another way, the Court has thus created a model for abortion rights in which a woman can refuse the recommendation to have an abortion for any reason, and a physician can and should refuse to provide an abortion whenever it would not benefit the woman’s overall health needs.
To summarize, while a woman may initiate a request for an abortion, it is the physician’s responsibility, in consultation with the patient, to weigh all the risks and benefits of every option and make an appropriate medical recommendation. This important, but generally neglected, safeguard in the Court’s rulings reflects the fact that the distress of an unplanned pregnancy may lead a woman to make a hasty, rash, ill-informed, or even dangerous decision. It is the physician’s role then to bring a calm mind to this medical problem, evaluate the patient’s problems, needs, and risks and to offer her the best medical care possible given all the complex factors involved. Just as a cancer patient is not free to procure chemotherapy without the review and recommendation of a physician, so a crisis pregnancy patient is not free to procure an abortion without the review and recommendation of a physician who will accept responsibility for what is “inherently, and primarily, a medical decision.”
Primacy of the Reasonable Patient Standard
Abortion is a unique medical procedure;(31) certainly no medical procedure has involved more Supreme Court rulings which have defined its legal nature and the attendant duties and obligations of the physician. On one hand, the aborting physician is responsible for ensuring that his recommendation to abort will benefit the patient, given her unique circumstances and her physical and emotional makeup. On the other hand, the physician is also responsible for helping the patient to fully understand the basis for his recommendation, attendant risks, and alternatives so that she can independently re-evaluate the situation in the light of his advice and choose to accept or reject his recommendation.
With regard to this latter responsibility, the Court has clearly presumed that the informed consent standard which should be applied is the reasonable patient standard. “The decision to abort, indeed, is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences.”(32) [Italics added] Furthermore, the health risks which should be discussed should be consistent with the broad definition of health reasons upon which the abortion right was established, including physical, psychological, familial, and social complications.(33) Indeed, to be fully informed, the Court suggests, disclosure should even include the effects of abortion on the fetus, since this would clearly be relevant to most women and may have a significant impact on their future psychological health.(34)
This highest standard, which the Court calls “imperative,” has been defined as applying to abortion in order to fully protect both 1) the freedom of women, and 2) health of women. These are precisely the two basic rights in which the Court has found a basis for creating the abortion liberty. Any informed consent standard less than the reasonable patient standard would jeopardize the rights of women as envisioned by the Court.
Thus, regardless of the prevailing standard for informed consent in a particular state, the Supreme Court has determined that a patient centered standard must be applied in abortion cases, if not in general, because this standard for full disclosure is integral to the “abortion liberty.”
Provision of this information is necessary to “insure that the pregnant woman retains control over the discretion of her consulting physician.”(35) The content of disclosure is to be measured not by what the physician deems to be important but by the right of the woman to make a fully knowledgeable choice, for “What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so.”(36)
To make this “ultimate decision” women must have access to all of the relevant information. It is not the right of the physician to “screen” information for her, but rather, in consultation with her, to help her fully understand his recommendation for abortion so that she can make an informed choice to accept or refuse his recommendation.
This highest standard for disclosure of risks and alternatives is justified for two reasons. First, abortion is an elective procedure and therapeutic privilege does not apply. Second, women seeking abortions are often in a state of emotional turmoil, often under conditions of duress from other people, and with no prior knowledge of abortion’s risks. Because of this stress surrounding the pregnancy, the patient clearly has an unrestricted need for and right to every relevant piece of information which will enable her to access the risks and alternatives to the proposed abortion. To apply a standard based on anything else than the primacy of a woman’s right to make a fully informed and free abortion decision undermines the constitutional framework in which the Court has labored to define the abortion right.
Law professor Joseph Stuart, J.D., argues that:
To take this line of reasoning a step further: if the factors to be considered should operate for the benefit of the woman and if she should have “full knowledge of the nature and consequences” of an abortion, then it seems that the needs of the patient-pregnant woman would determine the substance of the information disclosed. Therefore, a standard that held a physician only to some common medical practice (whatever that might be) or to some reasonable practice under the circumstances could very well fall short of the consultative model developed through the abortion cases.(37)
If the abortion right is to be construed for the benefit of women, it is difficult to see how a woman’s rights are harmed by use of the reasonable patient standard; on the other hand, it is abundantly clear that a woman’s rights may infringed by use of the abortion industry’s “community standard” which can often be self-serving. Without the freedom to be fully informed, a woman’s right to choose is rendered meaningless.
In their defense, abortion providers may argue that provision of detailed information regarding risks and alternatives is too burdensome. But because the right to choose is held by the woman, not the physician, “the fact that a duty ‘makes his work more laborious’ is not relevant. The determination that the information given is particularly dissuasive or persuasive is, likewise, not significant, since the duty is to inform and the assumption is that the woman can make the decision for herself.”(38)
In measuring the adequacy of disclosure, precise descriptions of the medical procedure, fetal development, and perhaps even moral issues, can be relevant and necessary when obtaining informed consent. This is evident in the 1992 Casey decision in which the Court stated:
Implications for Pro-Life Strategy
These considerations should help to inspire and guide pro-life efforts to expand the authentic rights of women and increase the accountability of abortion providers. Informed consent laws should be drafted in a way which codify the patient’s rights and physician’s obligations as defined by the Supreme Court. In drafting such legislation, care must be taken to avoid the appearance that the state mandated informed consent standard is anything more than a minimum standard. Abortion providers can and should be expected to provide additional information which a reasonable patient may require, including newly published research findings, and especially information which is uniquely pertinent to a particular woman’s health needs.
All statutes should reiterate Roe‘s finding that abortion is “inherently, and primarily, a medical decision.” While a woman may request an abortion, the abortion provider is responsible for forming an informed medical decision, on a case by case basis, that an abortion is likely to be benefit the woman. He is not free to provide an abortion which may be more injurious to her health than beneficial. The physician is obligated to refuse to provide an abortion which in his best judgment, given each patient’s physical, psychological, and social circumstances, would be injurious to her health.
In order to discharge this duty, the competent physician will screen patients for any characteristics which would predict that the patient is at risk of experiencing physical or emotional harm after the abortion. (For a list of high risk factors relevant to negative psychological reactions, see The Post-Abortion Review, Fall 1993). For the substantial number of women – perhaps the majority of women – who are at high risk of an adverse outcome, the conscientious physician would be legally and ethically bound to refuse to perform an abortion, at least until the high risk factors are alleviated.
In short, an abortionist can and should be held accountable to have a basis for “his medical judgment [that] the patient’s pregnancy should be terminated.” This requires some sort of cost/benefit analysis, on a case by case basis. To simply provide abortion on request is a prostitution of a physician’s skills and an abandonment of his responsibility to safeguard his patient’s health.
A more rigorous adherence to the pre-abortion screening and informed consent standards provided for by the Court would clearly reduce the number of abortions performed. Not only would abortionists be obligated to refuse to perform contraindicated abortions, but women themselves would reconsider their request for abortion after full disclosure of the risks. This is one way in which post-abortion research identifying high risk factors will directly curtail abortions and increase the malpractice liability of abortionists.
For the majority of women seeking abortions, abortion is a marginal choice. It is an ambivalent and irresolute choice made without an accurate understanding of risks and alternatives. Indeed, it is quite possible that the majority of women seeking abortions, if given a free and informed opportunity, would decide that childbirth is clearly healthier than abortion. Consider the following research findings: approximately 40 percent of post-aborted women were still hoping to discover some alternative to abortion when going for counseling at the abortion clinic; over 80 percent say they would have carried to term under better circumstances or with the support of loved ones; between 30 and 60 percent of women having abortions have a positive desire to carry the pregnancy to term and keep their babies; approximately 70 percent of women seeking abortions have a negative moral view of abortion and are choosing against their consciences because of outside pressures; over two-thirds of women seeking abortions feel they have “no choice” or are “forced” to have the abortion by others or circumstances.(40)
These findings suggest that many, if not most, abortions are sought contrary to the fundamental desires and beliefs of the women submitting to them. This, in turn, suggests that abortion rates would plummet if women were fully informed of risks, protected from coercion, and provided alternatives which address the medical, legal, or social problems which make them feel “forced” to have an unwanted abortion.
A future issue of The Post-Abortion Review will describe specific legislative initiatives which use the principles discussed above to enhance patients’ rights and increase the likelihood that patients can recover damages from abortionists who fail to provide “competent, conscientious, and ethical” care.
Originally published in The Post-Abortion Review 2(2) Spring/Summer 1994. Copyright 1994 Elliot Institute
2. Schneyer, Informed Consent and the Danger of Bias in the Formation of Medical Disclosure Practices, 1976 Wis. L. Rev. 124; Stuart, “Abortion and Informed Consent: A Cause of Action,” Ohio University Law Review 14(1):1-20.
5. Ibid, 787-88. Also, “A risk is thus material when a reasonable person in what the physician knows or should know to be the patient’s position would be likely to attach significance to the risks or clusters of risks in deciding whether or not to forego the proposed therapy.” Canterbury, at 792. In short, any risk that could affect the decision must be disclosed.
8. Lewis, “How adolescents approach decisions. Changes over grades seven to twelve and policy implications,” Child Development 52:538-544 (1981); Weithorn & Campbell, “The competency of children and adolescents to make informed treatment decisions,” Child Development 53:1589-1598 (1982).
9. Standards of care requiring full disclosure of risks, screening for medical and psycho-social risks factors, exploration of alternatives, and adequate time for consideration are set out in the following: M. Borton, “Induced Abortion” Obstetrical Decision Making, Second Edition, E. Friedman, et al., eds. (Philadelphia: B.C. Decker Inc., 1987); Ambulatory Maternal Health Care and Family Planning Services Policies, Principles, Practices, ed. F. Barnes, Committee on Maternal Health Care and Family Planning, Maternal and Child Health Association, American Public Health Association, Interdisciplinary Books and Periodicals for the Professional and Layman (1978).
10. For a discussion of pre-abortion screening standards and the risk factors for which patients should be screened see Reardon, “Identifying High Risk Abortion Patients,” The Post-Abortion Review 1(3):3-6, 1993.
13. “The privilege [to withhold risk information which in itself would "present a threat to the patient's well being"] does not accept the paternalistic notion that the physician may remain silent simply because divulgence might prompt the patient to forego therapy the physician feels the patient really needs. That attitude presumes instability or perversity for even the normal patient, and runs counter to the foundation principle that the patient should and ordinarily can make the choice for himself.” Canterbury at 789.
16. “The very foundation of the doctrine of informed consent is every man’s right to forego treatment or even cure if it entails what for him are intolerable consequences or risks, however warped or perverted his sense of values may be in the eyes of the medical profession, or even of the community, so long as any distortion falls short of what the law regards as competency. Individual freedom here is guaranteed only if people are given the right to make choices which would generally be regarded as foolish.” Harper & James, The Law of Torts (1968 Supp.) section 17.1 at 61
17. “If the pregnant girl elects to carry her child to term, the medical decisions to be made entail few — perhaps none — of the potentially grave emotional and psychological consequences of the decision to abort.” H.L. v. Matheson, 412-413.
19. Vaughan, Canonical Variates of Post Abortion Syndrome (Portsmouth, NH: Institute for Pregnancy Loss, 1990); Franz, et. al., “Differential Impact of Abortion on Adolescents and Adults,” Adolescence, 27(105):161-172 (1992); Steinberg, “Abortion Counseling: To Benefit Maternal Health,” American Journal of Law & Medicine 15:4, 483-517 (1989).
20. The Supreme Court has affirmed that the “medical, emotional, and psychological consequences of an abortion are serious and can be lasting…” H.L. v. Matheson 450 U.S. 397 (1980) [hereinafter Matheson] at 411, also 413; Planned Parenthood v. Danforth 428 U.S. 51 (1975) [hereinafter Danforth] at 67; Planned Parenthood v. Casey 120 L Ed 2d 674 (1992) [hereinafter Casey] at 698-699.
21. “Some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.” (Roe, 153.) “The privacy right involved, therefore, cannot be said to be absolute…. The Court has refused to recognize an unlimited right of this kind in the past.” (Roe, 154) “Even an adult woman’s right to an abortion is not unqualified.” Matheson at 419 (Powell and Stewart, concurring). Also Danforth at 60 and Casey, at 709.
24. Roe at 166. Also: “The [Roe v. Wade] decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention.” Roe, 165-166.
25. The decision whether or not to abort should be made “in light of all circumstances – psychological and emotional as well as physical – that might be relevant to the well being of the patient.” (Danforth at 66) Family size, financial concerns, mental health, and physical health are all issues in making a medical recommendation for abortion. “All these are factors the woman and her responsible physician necessarily will consider in consultation.” (Roe, 153) This medical decision is especially weighty, because “Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of potential life.” Harris v. McRaie, 448 U.S. 297, 325 (1980).
32. Danforth, at 67. The patients right to “full knowledge” is repeated in Akron 462 U.S. at 448. The medical profession has seen in these rulings a trend toward defining the physician’s right to determine what information should be disclosed about risks and alternatives “only as an adjunct to the realization of patient’s rights, and not as significant in themselves.” Kapp, “Abortion and Informed Consent Requirements,” Am. J. Obstetrics and Gynecology, 144(1):1-4 (1982).
34. “It cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.” [Italics added] Planned Parenthood v. Casey 120 L Ed 2d 674 at 718.