The Slippery Slope of “Informed Consent” Abortion Laws


Abortion restrictions passed as informed consent laws represent some of the worst cynicism in the anti-choice movement, so it should come as no surprise that in their 2012 party platform Republicans enthusiastically “salute” those states that passed such laws. The salute has no real immediate effect, but the inclusion is telling of the Republican drive to consign women to second place citizens under the law.

It’s not just that Republican leadership hopes to inspire copycat bills by applauding the mandatory ultrasound laws in places like Texas and Virginia, or mandatory disclosure law in South Dakota. That much is a given. And it’s not even that Virginia Gov. Bob McDonnell’s inclusion of it in the platform smacks of narcissistic self-promotion at the expense of women’s lives. It’s that these laws, in ways unlike other forms of abortion restrictions,  return to the legal understanding of women as an inferior class of persons, in need of both constant monitoring and assistance as well as oversight and regulation. Once re-codified in the law that is a world view that is impossible to contain to the discreet category of abortion restrictions.

That these laws are all passed and under the guise of “empowerment” only underscores the game at hand. In Planned Parenthood v. Casey Justice Anthony Kennedy’s opinion defends a series of abortion restrictions including forcing doctors to show women materials with graphic pictures of aborted fetuses as part of obtaining a woman’s informed consent for an abortion even when those materials have no direction relation to the health of the woman related to the procedure. The reason Justice Kennedy found this kind of practice okay was because it furthered the state’s interest in protecting the life of the unborn.

That disconnect–that the government can mandate procedures and disclosures that do not even have to be directly related to the health of the woman–in the context of securing informed consent but in the name of protecting potential life, has all but rendered informed consent all but meaningless.

This leaves women unable to rely on doctors and nurses, their advocates in the health care system for objective and unbiased information. It means that women must second guess every diagnosis and recommended course of treatment in states with these kinds of informed consent restrictions because the motive behind those restrictions is not, as the courts try to claim, empowering women but advocating against women’s ultimate control over their fertility and their bodies.

From Casey’s support of mandating disclosures related to fetal remains comes the Fifth Circuit’s endorsement of transvaginal ultrasounds. Citing Casey for authority in upholding the law, Judge Edith Jones posits that this latest invasive and unnecessary procedure is nothing more than the logical, technological evolution of the pictures in Casey and necessary for women to achieve full appreciation of the decision they are about to make. And from there we get the Eighth Circuit Court of Appeals approval of mandating disclosure of a link between abortion and suicide, despite the fact that no such link exists because this kind of information is “helpful” to women.

When the national political leadership celebrates these achievements we need to ask what comes next. If women are unable to make fundamental decisions about their health and future without substantial “assistance” from the state, can they make decisions about transferring property? Or electing representatives? it is not hyperbole to suggest a slide away from true agency in the context of informed consent for abortion leads to a slide away from true agency in other areas of the law where consent is required.

So while it is tempting to brush off the salute to informed consent laws as nothing more than political pandering and posturing we simply cannot do so. Rather than pandering and posturing the salute represents a clear signal of the direction conservatives intend to drive women’s rights, and there is no reason to think they will simply stop at curtailing reproductive rights.

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