Legislative Hearings On Standard of Care Issues Regarding Abortion

The legislature can be asked to hold hearings on whether or not clinics are operating according to the ideal standard of care for screening, full disclosure, individualized counseling based on individual risk factors and health needs, protection from coercion, and the formulation of informed medical recommendations. (T. Strahan,”Lack of Individualized Counseling Regarding Risk Factors for Induced Abortion: A Violation of Informed Consent”,Research Bulletin, Vol.10 Nos. 1 & 2, 1996)

In the Judiciary Committee, these hearings could begin with the question of implications of Roe v. Wade and subsequent rulings with regard to women’s rights and doctor’s duties. (All spelled out, from my perspective, in Making Abortion Rare.) It would be good to get this information into the legislative record. Here are some starting points:

• What is the standard for full disclosure of risks and alternatives? (See Stuart, “Abortion and Informed Consent: A Cause of Action,” Ohio Northern University Law Review, XIV(1):1-20 (1987), also for extended discussion either of my books, Making Abortion Rare.)
• When is a physician legally or ethically obligated to refuse a contraindicated abortion? (Sylvia Stengle, executive director of the National Abortion Federation, which represents abortion clinics, admitted in a Wall Street Journal interview, October 28, 1994, that at least one in five patients (probably a low estimate) are at psychological risk from abortion due to prior philosophical and moral beliefs contrary to abortion. In short, because of external pressures, they are aborting in violation of their consciences. Stengle admits that “It’s a very worrisome subset of our patients. Sometimes, ethically, a provider has to say, ‘If you think you are doing something wrong, I don’t want to help you do that.'” Actually, it should be more than an ethical obligation. Researchers on both sides of the issue agree that women who abort against their conscience are more likely to suffer greater degrees of guilt, depression, impacted grief, and other psychological problems. I would argue that this, among other high risk factors, is a contraindication in which case the physician would be obligated to refuse to perform the abortion, because it poses too much danger of hurting more than helping, or to provide extensive counseling prior to the procedure.
• What should the standard be for counseling with regard to moral beliefs and how should counselors assist a woman who believes that she is aborting a human life? (Charlotte Taft, an abortion clinic counselor was fired for requiring patients to confront the issue of saying “goodbye” to their baby. Does her position represent a standard that all clinics should be meeting, especially given the Court’s opinion in Casey? “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…. [This information] 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.”
• If the state may not impose a view of when life begins on women, are statues or court rulings which exclude wrongful death claims for the death of an unborn human fetus invalid if, in the woman’s mind, she believes her unborn human fetus is a “life,” a “person” or a “child?” In other words, Roe does not declare the unborn non-persons, but requires states to leave this determination to the opinion of the woman, in consultation with her physician. Should not this subjectivism, then, cut both ways? (The Florida Supreme Court recently ruled that a woman was not entitled to sue for wrongful death of her unborn child because Roe defines the unborn as non-persons. This is a flagrant misreading of Roe.)
• If a woman grants personhood to her child, by wanting her child and by her subjective belief that it is her child, but seeks an abortion in violation of her conscience because of pressure from others or circumstance, does not the “right” to abort disappear in such a case?
• How are physicians exercising their basic responsibility to protect their patient’s health? Are they adequately screening patients and recommending abortion as the safest course of action, or are they merely letting women self-prescribe abortions which may be contraindicated and dangerous given their individual circumstances? (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.” [Italics added])