Back to the Future: Antichoice Activists and (Mis)Informed Consent

Elizabeth Nash is a Public Policy Associate in the Guttmacher Institute's Washington DC office.

It's only been about a month since the midterm election that brought significant prochoice victories, including the defeat of South Dakota's draconian abortion ban and the rejection of ballot initiatives in California and Oregon that would have required parental notification before a minor could obtain an abortion. And yet, it is already time to go back to work as antiabortion advocates are gearing up once again to continue restricting access to abortion services.

Stephanie Simon reported in the LA Times shortly after the election that one of the antichoice movement's primary goals will be to "expand or rewrite ‘informed consent' laws" – a favorite and perennial tactic. According to a recent analysis by the Guttmacher Institute, written counseling materials often contain medically inaccurate, out-of-date or biased information – violating a core tenet of the principles of informed consent.

Informed consent – the concept that individuals have a right to receive relevant, accurate and unbiased information prior to receiving medical care so they can make sound decisions regarding treatment – is a bedrock principle of medical ethics. Moreover, the obligation to provide such information is mandated by statute or case law in all 50 states. Under the banner of informed consent, a majority of states have enacted abortion counseling laws requiring physicians to provide specified information to women seeking abortions. Many of these laws require the state health department to develop detailed written materials that must be distributed to women prior to the procedure.

But these state-developed materials do not always measure up to the gold standard of informed consent. Particularly with regard to certain hot-button issues, the information presented is either out-of-date, biased or both. In some cases, the state goes so far as to include information that is patently inaccurate or incomplete, lending credence to the charge that states' abortion counseling mandates are sometimes intended less to inform women about the abortion procedure than to discourage them from seeking abortions altogether.

The Guttmacher analysis, conducted along with our former colleague Chinué Turner Richardson (how's law school treating you?), identified 22 states where state health departments had developed written counseling materials, in most cases covering specific topics required by law. While most of the information on abortion is consistent with current scientific findings, the following were among the most common inaccuracies:

  • Fetal pain: False or misleading information on a fetus' ability to perceive pain appears in the materials of five states (AR, GA, MN, SD, TX). For example, materials in Texas suggest that pain perception may occur as early as 12 weeks' gestation. However, current research is unable to determine when a fetus has the capacity to feel pain, and data suggests that it is unlikely to do so until at least 29 weeks' gestation. (In a related development at the federal level, a bill that would have required a woman seeking an abortion to be offered an anesthetic for the fetus and to be told there is evidence the procedure can cause fetal pain fell short of the two-thirds majority needed to pass the House of Representatives on December 6.)
  • Psychological effects: Seven states (MI, NE, SC, SD, TX, UT, WV) provide misleading or incomplete counseling materials on the psychological impact of induced abortion, such as claims of suicidal behavior and "postabortion traumatic stress syndrome." The best scientific evidence states clearly that there is no causal relationship between abortion and negative mental health outcomes.
  • Breast cancer: Required counseling materials in five states (AK, KS, MS, TX, WV) include medically inaccurate claims that induced abortion is linked to breast cancer. For example, materials in Texas state the evidence on the issue is "inconclusive," even though the National Cancer Institute has stated categorically that "[i]nduced abortion is not associated with an increase in breast cancer risk."
  • Referrals: Materials in 20 states (AK, AR, GA, ID, KS, KY, LA, MN, MS, NE, ND, OH, PA, SC, SD, TX, UT, VA, WI, WV) include so-called "crisis pregnancy centers" in their listings for support services. According to a recent congressional report, such centers often intentionally provide false information to deter women from having an abortion.

Taken together, our analysis of state abortion counseling laws and the materials doctors are required to provide to women seeking abortions reveals that basic public health principles often are disregarded in favor of furthering a highly politicized antiabortion agenda. Providing medically inaccurate information violates a core tenet of sound public health policy and seriously jeopardizes a woman's ability to make an informed decision regarding her own life and health.

Sadly, it appears that we can expect more of the same in the coming months and years – making it all the more urgent that state policymakers, the media and the public be better educated about the various issues surrounding informed consent and written abortion counseling materials.

Visit the State Center on the Guttmacher Institute's website for more information on sexual and reproductive health and rights in the states (updated monthly) as well as the current status of state policies.

Editor's note: Elizabeth Nash's last post was co-written with Rachel Benson Gold.

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