The Woman’s Right to Know Referenda
by David C. Reardon, Ph.D.
As has frequently been discussed in these pages, informed consent is the abortion industry’s Achilles’ heel. Abortionists can only thrive by concealing relevant information from women. First, they know that full and accurate disclosure would only convince many women that abortion is a bad solution which causes more problems than it solves. Second, they know that full disclosure is time consuming. When properly done it would also require abortion counselors to develop a careful psychosocial history of each patient to identify characteristics or situational factors which would place the individual at higher risk of post-abortion sequelae. But all of this means getting more personally involved with the patient, and the last thing abortion mills want to do is to really become involved in their patient’s lives. Instead, they simply want to offer a “one solution fits all” service–namely, abortion on request, even if the request is an ill-informed or dangerous one.
While full disclosure and expanded right to redress laws are opposed by the abortion industry, the vast majority of Americans support these pro-woman initiatives. Even among people who describe themselves as pro-choice, three out of four favor laws protecting a woman’s right to full disclosure.
Yet, because legislators are subject to pressure from pro-abortion lobbyists, and especially from pro-abortion medical societies, pro-woman informed consent and right to redress laws can be difficult to pass or will end up watered down with provisions to limit the abortionists liability. In many states, then, the best way to bypass pro-abortion lobbyists and legislators is through citizen’s initiatives. Through these petition drives, referenda can be placed on the ballot so that voters can directly vote on legislation, amend the state constitution, or merely express their will to the legislature.
Voter initiatives can be very powerful. Consider for example how the vast majority of people would vote with regard to the following amendment to a state constitution’s bill of rights:
“Women have a civil right to full disclosure of all risks, alternatives, or other information which a patient might reasonably consider relevant to a decision to accept or refuse a recommendation for abortion. The State may not limit a woman’s right to seek recovery in civil court for any injuries related to induced abortion.”
This simple amendment, which on its face is perfectly reasonable to people in the middle majority, would: 1) Establish that it is a violation of a woman’s civil rights to withhold relevant information; 2) Establish that the standard for disclosure is the reasonable patient standard; 3) Clarify the legal principle that when a woman requests an abortion the decision to proceed is always the result of the physician’s recommendation (patients never proscribe their own treatment); 4) Strike down any statutes of limitation for time of filing a suit against the abortionist (justified by the long time in which shame will prevent women from bringing an action against the abortionist); and 5) Eliminate any ceilings which limit the size of judgments against abortionists.
To expand on the first point, by making lack of full disclosure a violation of a woman’s civil rights (as defined in Roe and its progeny), it would no longer be necessary to pursue recovery on the basis of medical malpractice. (Medical malpractice cases are difficult to win and expensive to litigate.) Instead, the salient issue would simply be that the woman was denied her civil right to full disclosure, which is itself injurious to her and women in general. To prove this injury, the plaintiff would only have to establish that some relevant information was not disclosed. The plaintiff would not have to prove that the abortion resulted in any other injury or that she would have chosen differently if the information had been disclosed. In short, by establishing that lack of full disclosure is itself injurious, it is far easier for the plaintiff’s attorney to develop and win a judgment against the abortionist.
All of the above can be done through statutes pursued through the normal legislative process. Indeed, the Elliot Institute’s model legislation does the above and much more. But the public referenda approach is a better tool for promoting public education regarding post-abortion injuries and the deceptive counseling practices of abortion providers. In addition, by taking such initiatives directly to the people, pro-abortionists are placed in a very difficult bind. It is very difficult to articulate a simple public argument against full disclosure without opening a can of worms. The only substantial complaint that pro-abortionists can make against such an amendment is that it would put abortion clinics out of business. But this complaint immediately raises the question of why they would go out of business if abortion is as safe as they claim.
Another challenge pro-abortionists would face is that this initiative harnesses every trend in public sympathy against them. While many voters have a great deal of sympathy for women seeking abortion, very few have any sympathy for abortionists. This built in bias would create a tremendous uphill battle for the pro-abortionists who would attempt to argue against our simple women’s rights amendment.
Another advantage of a state wide referendum is that it is a relatively inexpensive way to mount a very effective public relations campaign. Gathering signatures is inexpensive because it can be done by pro-life volunteers, and once the initiative is on the ballot, press coverage of the issue is automatically assured. In addition, petition signatures can then be added to the sponsoring organizations’ pro-woman/pro-life mail lists.
Finally, this effort provides a way to force a public division between those who are pro-choice (pro-woman’s autonomy) and those who are pro-abortion (pro-abortion-industry-profits). Indeed, it may be strategically advantageous to have this initiative sponsored by a new organization which can claim to represent a coalition of both anti-abortion and pro-choice members. The principle purpose of this coalition organization would be to show that sincere pro-choice and pro-life individuals can work together to help make abortion more rare by defending women’s rights in a way which will prevent unwanted, ill considered, or dangerous abortions. In contrast it will become clear that the only ones opposed to such a reasonable proposal are the radical pro-abortionists who want to protect abortion industry profits at the expense of women’s rights.
Can you start this initiative in your state? Can you keep looking and asking until you find a coalition of organizations and people who can and will turn this idea into a reality? Please give this prayerful consideration. If we can get this initiative on the ballot in even a few states for the 1996 election, we will be well on our way to transforming the national debate on abortion. Also, please keep us informed of your efforts and we will be glad to share with you additional ideas relevant to this proposal.
Originally published in the PostAbortion Review 3(3) Summer 1995. Copyright 1995 The Elliot Institute.
