CLOSING THE NET:Beyond Informed Consent
David C. Reardon
Regular readers of The Post-Abortion Review have frequently read my suggestions regarding the need to go beyond the Pennsylvania model of standard informed consent which was upheld by the Supreme Court in Planned Parenthood v. Casey. The Elliot Institute has now finished preparation of model legislation which we believe will be both more effective and less vulnerable to political and judicial attack.
Politically, by minimizing state intervention our model legislation reduces opportunities to attack the legislation as anti-choice interference with doctor-patient relations. By keeping the burden of disclosure on physicians, rather than the state, and by emphasizing the desire to protect the class of women who are most at risk of post-abortion complications, we also minimize the opportunity for courts to find that the legislation imposes an "undue burden" on women.
We have identified three primary arguments against informed consent legislation: 1) The waiting period after disclosure presents an onerous burden to some women; 2) physicians would be forced by the state to give women inaccurate or irrelevant information; and 3) Most women already have access to all of the information they need and have already made up their minds.
Our legislation eliminates, or makes irrelevant, all three of these objections. Since the abortion industry has always wanted to be self-policing, our strategy is to ensure that they are do indeed police their activities by clearly defining the responsibilities of the abortionist and by increasing the patient's rights and opportunities to seek redress.
For example, our legislation provides that if a plaintiff can demonstrate that there was lack of full disclosure or voluntary consent, this itself is a violation of her basic rights for which she shall be awarded damages of not less than $200,000 and not more than $2,000,000. She does not have to show any other injury. She does not have to show that the non-disclosed information would have changed her mind. Furthermore, the cause of action, in such cases, is not one of medical malpractice, which is always difficult to litigate, but of battery, or of a violation of her civil or constitutional rights. This base award could of course be increased if other injuries are shown to have occurred. But this base award establishes sufficient monetary incentive for attorneys to accept and litigate abortion cases.
We have also eliminated the problem of a state mandated brochure describing fetal development, risks, and alternatives. In states with informed consent laws, these brochures have been prepared by the state's department of public health. The writing of these brochures has been highly politicized. In addition, their very existence tends to shift responsibility for disclosure from the physician to the state.
In our legislation the full responsibility for the contents of the brochure rests on the abortion providers. Only general topics are mandated: "Your Legal Rights," "Resources To Help You," "Development of the Human Fetus," "Risks Which May Be Related to Abortion," "Characteristics Which May Place You at Higher Risk." Abortionists are free to fill in these sections (using, at the very least, information available in the public depository described below) in whatever way they feel is accurate and sufficient, knowing that they are also completely liable for the accuracy and sufficiency of their statements. The only exception is the section on legal rights where the law mandates very specific statements regarding the physician's obligations and the woman's rights, including her rights to sue for any lack of full disclosure or other violations of her rights. In the event of a suit against the abortionist on the basis of inadequate disclosure, a jury would use the reasonable patient standard to judging the adequacy of the brochure provided by the abortionist.
We feel this approach is far superior to the use of a state developed brochure. There is little that can be done about politicized bureaucrats who would distort or leave out relevant information. The quality of disclosure can best be ensured by imposing stiff liability risks. In order to continue operating under the disclosure requirements of our model bill, abortionists will be far more motivated to provide full disclosure than would public health officials. For the abortionists, the safest way to minimize liability will be by giving more information than necessary, which is as it should be.
To assist both abortionists and plaintiff's attorneys, our model legislation requires the state department of public health to maintain an Abortion Information Depository. Anyone, in particular those who believe abortion has risks, or who offer safer alternatives, can deposit date stamped information and data which should be available for consideration by patients seeking abortion. Abortionists will be expected to be familiar with the materials in the depository. In the event of a law suit the clinic prepared brochure can be compared to the contents of the Depository. Was there something in the Depository which was not disclosed but which a reasonable patient would have found relevant to her decision? If so, she has made her case. The Depository, then, serves as a publicly available standard for determining what information may be relevant to patients.
Another important feature of this bill is that it recognizes that not all women should be treated the same. Some women will need more information than others. Some will need more time to digest the information they receive. It is the responsibility of the abortionist to identify these women and to provide them with the additional counseling, time, or other assistance they need.
Thus, our bill establishes a two tier process of disclosure. There is standard disclosure, according to the reasonable patient standard. To determine if additional counseling is required, abortionists are obligated to screen for predisposing characteristics which would place a patient at increased risk of sequelae. (See The Post-Abortion Review, Spring 1994 for a list of these. The majority of patients fall into one or more high risk categories.) If any such risk factors are found, the abortionist is expected to provide additional counseling or referral to either 1) alleviate these predisposing risks, 2) to discover a safer course of care, or 3) to document and certify why the abortion is recommended over other alternatives. This requirement, which legitimately advances women's health needs, will effectively put an end to the "one size fits all" counseling approach used at most abortion clinics.
This brings up another important political benefit of this bill. Our bill recognizes that each woman is unique in her needs and relative risk, and it simply requires clinics to treat each woman accordingly, which they claim to be doing already. Indeed, one of the pro-abortionist's standard arguments against reading off a state mandated laundry list of risks and alternatives is that such lists do not respect the unique circumstances and needs of each patient. This bill accepts their argument, and insists that they live up to their own idealized standard or accept legal liability when they do not.
Still another important aspect of this bill is that it reinforces the legal fact, as established in Roe, that abortion is not available on demand. It is available only upon the recommendation of the physician, who presumably has made an informed judgement that this form of crisis care would be most beneficial to the woman. This is an important point and it should be made a more central issue in malpractice litigation. In defending themselves in civil action, abortionists should be required to document the basis for their recommendations to abort given a woman's particular health needs, circumstances, and psychological risk profile.
Most of the enforcement provision in our model are found in the section regarding civil penalties. One part of this section extends the statute of limitations to three years after the woman has recovered from physical or psychological injuries associated with the abortion. This extended statute of limitations recognizes that symptoms of psychological illness may include avoidance behavior, denial, and intense shame which are a disability which would prevent an injured woman from seeking compensation for her injuries until after she has recovered from these injuries.
Other provisions in the civil penalties section enhance the plaintiff's right to redress. One of these establishes standards of presumption which favor the plaintiff. Another extends the definition of expert witnesses to include experts in crisis pregnancy care, which is, at least theoretically, the service being provided by abortionists.
This model legislation includes many more novel features, but there is not sufficient room to discuss them here.
Originally published in The Post-Abortion Review 3(1),Winter 1995. Copyright 1995 Elliot Institute
See also Making Abortion Rare: A Healing Strategy for a Divided Nation for a more detailed discussion of this legislative and political strategy. Also see A New Strategy for Ending Abortion