|
Article Excerpt
It must be admitted that women have but little sense of justice.... We say also of women that their social interests are weaker than those of men, and that their capacity for the sublimation of their instincts is less. (1)
Respect for human life finds an ultimate expression in the bond of love the mother has for her child.... While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. (2)
I. INTRODUCTION II. A BRIEF HISTORY OF "PARTIAL-BIRTH" ABORTION BANS III. THE PHYSICIAN & PATIENT: INFORMED CONSENT, AUTONOMY & ABORTION LAW A. Informed Consent in the Healthcare Context B. "Informed Consent" to Abortion from Roe to Casey C. "Informed Consent" and Abortion Decision-Making After Carhart IV. THE STATE AND THE PATIENT: SOME EXCEPTIONS TO PATIENT AUTONOMY A. Exceptions to Patient Autonomy "For the Common Good" 1. Compulsory Vaccination 2. Controlled Substances B. Exceptions to Patient Autonomy "For the Patient's Own Good" 1. Experimental Drugs 2. Physician Assisted Suicide IV. CONCLUSION
I. INTRODUCTION
This article explores the law's failure to treat pregnant women as capable of making their own decisions concerning whether to have an abortion. The Supreme Court's decision in Gonzales v. Carhart, (3) which upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients, brought the question of women's capacity for healthcare decision-making to the forefront of public legal consciousness. In Carhart, the Court abandoned its previous deference and respect for a woman's right to be her own decision-maker with regard to abortion and instead determined that a pregnant woman lacks capacity to make her own decisions and to give informed consent to abortion-related medical treatment. According to the Court, the government may make the final decision regarding a pregnant woman's healthcare to ensure that she realizes her "ultimate" role as a mother.
Carhart marks the Supreme Court's first refusal to require a health exception to an abortion restriction since Roe v. Wade and its first use of the antiabortion movement's woman-protective rationale to uphold an abortion ban. (4) The woman-protective rationale claims that banning abortion promotes women's mental health. (5) Carhart's woman-protective anti-abortion reasoning casts the federal "partial-birth" abortion ban as a public health measure that serves to protect women from "regret" and depression. Contrary to this claim, the Carhart decision not only endangers women's health, but also may encourage courts and legislatures to approve other similar measures under the guise of "protecting" women. The woman-protective rationale also obscures the underlying constitutional question at issue in challenges to "partial-birth" abortion bans--may the government jeopardize women's health for the sake of the government's "ethical and moral" interests in the fetus? (6)
Carhart's portrayal of women evokes a century-old societal view of femininity. (7) The Carhart Court's cabined view of women's decision-making capacity reflects a gender-stereotyped view of women's nature. (8) The Court also exposed its discriminatory view of women as decision-makers by articulating a new paradigm of "informed consent" in the abortion context that controverts well-established rules of patients' right to informed consent in healthcare law. This article focuses on Carhart's disturbing reasoning--that competent adult women lack the capacity to determine for themselves what is best for their own health--and evaluates its implications in the abortion context and in other areas of medical treatment related to pregnancy. This article criticizes the woman-protective anti-abortion claim from the perspective of healthcare law by comparing the treatment of women's healthcare decision-making under abortion law to patient decision-making under more general law. A close examination of the law on healthcare decision-making yields the conclusion that, compared to how the law treats all other competent adult patient decision-making, abortion law treats pregnant women unequally. This article argues that the denial of pregnant women's capacity to make abortion decisions unjustifiably diverges from the law's treatment of patient decision-making in both the private law doctrine of informed consent and in public law constitutional cases governing medical decision-making. In no other area of healthcare does the State override a competent adult's right to consent to a medical procedure that falls within the bounds of proven and accepted medical practice, and in fact may be physically safer for the patient, based on the State's unsubstantiated view that the treatment will be psychologically harmful to the patient. The law only subjects the gender-specific abortion decision to this kind of doubt about patient decision-making capacity, therefore denying that women have the same ability as men to make informed healthcare decisions. (9) The law's unequal treatment of women as decision-makers further bolsters the argument articulated by feminist legal scholars that restrictions on abortion are manifestations of sex discrimination. (10)
This article begins by examining the tort law doctrine of informed consent. Informed consent law serves primarily to respect patient self-determination and autonomy. The article then contrasts the tort doctrine of informed consent with abortion law's approach to informed consent. It seeks to disentangle "informed consent" as used in abortion law from informed consent law generally. A growing disrespect for women's decision-making capabilities has been underway for some time in the abortion context, which the Court's approval of abortion-specific "informed consent" regulations particularly reveals. Abortion law invokes and then misuses "informed consent" terminology. These so-called "informed consent" to abortion regulations belie a deep suspicion of women as medical (and moral) decision-makers. This article traces the history of the Supreme Court's acceptance of abortion-specific "informed consent" legislation, starting with its decision in Planned Parenthood v. Casey. (11) The Casey opinion characterized women as incapable decision-makers in need of the State's "protection" provided through biased information disguised as "informed consent" legislation. (12) Abortion law's divergence from traditional informed consent law culminated in Carhart, which turned established informed consent doctrine on its head by completely denying women's capacity to give consent to treatment. Carhart's stark departure from informed consent law properly understood exposes abortion law's sex discriminatory treatment of women as healthcare decision-makers.
In order to further flesh out the law's approach to medical decision-making, this article next considers how constitutional law treats patient decision-making capacity. In tort law, the rule of informed consent firmly respects a patient's ability to make her own medical decisions, at least in principle. (13) Although its basic principle of respect for patient autonomy has at times guided the Supreme Court's interpretation of the Due Process Clause as applied to individuals' right to healthcare decision-making, informed consent doctrine primarily governs the physician-patient relationship, not the relationship of the State to the patient. (14) With respect to the State-patient relationship, the picture of patient decision-making is more complex. Although under private law we clearly allocate decision-making power to the patient rather than the physician, under constitutional law--public law--we sometimes allocate decision-making power to the government rather than the patient for the sake of protecting public health. (15) The Supreme Court has permitted government to impose some limits on individuals' healthcare decision-making. These limits act as exceptions to the general rule of patient informed consent. Nevertheless, public health restrictions on patient choice do not undermine the notion that the law generally should respect the decision-making abilities of competent adult patients. Even under precedents that allow government limits on patient choice, the State cannot endanger patient health in order to paternalistically protect patients from unproven risks of psychological harm that may result from their own supposedly poor medical decision-making. Therefore, not only does Carhart eviscerate the longstanding principle of respect for patients' decision-making capacity enshrined in the doctrine of informed consent, it also finds no support in precedent related to healthcare decision-making in the field of constitutional law.
In sum, only in the abortion context does the law deny a competent adult's capacity to determine which healthcare choice they will least regret. By denying women's capacity for sound medical decision-making, the Court justifies the government's denial of women's autonomy and excuses the imposition of the State's substitute judgment on pregnant women. In addition, Carhart's characterization of women as incompetent decision-makers may resonate with courts and legislatures since it reflects "ancient notions about women's place in the family and under the Constitution." (16) The woman-protective rationale for restricting abortion has dangerous implications for women's equality and liberty, and not only within abortion law. The Carhart Court's inversion of informed consent principles could lead to much more extensive regulation of pregnancy in the larger context of "maternal-fetal conflicts." (17)
This article proceeds in three parts. Part II provides a brief overview of "partial-birth" abortion bans in the United States, like that upheld in Gonzales v. Carhart. In particular, this review will trace the history of state "partial-birth" abortion bans and the federal "partial-birth" abortion ban, as well as the prior Supreme Court decision, Stenberg v. Carhart, (18) which struck down a state "partial-birth" abortion statute. Part II then summarizes the Supreme Court's reversal of course in Gonzales v. Carhart.
Part III demonstrates that abortion law, although invoking "informed consent" as a reason for abortion restrictions, has diverged far from the law of informed consent. It briefly reviews the development of the tort law doctrine of informed consent in the United States and describes the basic principles underlying informed consent in the healthcare context. Prior to the Carhart decision, abortion law had already diverged from the general law of informed consent by doubting women's equal capacity to make healthcare decisions. Part III traces this shifting analysis of so-called "informed consent" statutes specific to abortion, critically examines Carhart's reasoning regarding women's capacity to consent to abortion-related medical treatment, and examines the impact of the Court's validation of the woman-protective anti-abortion claim.
Finally, Part IV argues that contrary to Justice Kennedy's suggestion, Carhart's woman-protective reasoning finds no support in precedent governing the State's limited ability to override patient decision-making under the Constitution. In particular, the Supreme Court has permitted the government to mandate vaccination, ban certain controlled substances, restrict access to experimental medications, and ban physician assisted suicide. Yet, the State does not endanger patients' physical health in any of these healthcare situations based on the State's unsubstantiated belief that the treatment will be psychologically detrimental to the patient.
This article concludes that the woman-protective rationale adopted in Carhart is likely to continue to undermine the equal treatment of women as healthcare decision-makers in the abortion context and beyond.
II. A BRIEF HISTORY OF "PARTIAL-BIRTH" ABORTION BANS
More than one million elective abortions are performed each year in the United States, making it one of the nation's most common surgical procedures. (19) The vast majority of these abortions occur in the first trimester, with second trimester abortions occurring only in approximately 12% of all abortions. (20) Nevertheless, this leaves over 100,000 women per year seeking abortions in the second trimester. Second-trimester procedures "are potentially more morbid because of the increased size of fetal and placental tissue, increased blood volumes and a distended uterus with decreased resistance." (21) Furthermore, women seeking second trimester abortions are medically "a very important group, including virtually all patients who have antenatal diagnosis of congenital anomalies, many women with serious illness, and a disproportionate share of very young women." (22) In other words, second trimester abortion patients represent the most vulnerable group of women, including the very sick, the very young and the very poor. (23)
The abortion regulation at issue in Gonzales v. Carhart purports to ban a method of second trimester abortion called "partial-birth" abortion by its opponents. "Partial-birth" abortion is not a medical term, but a political one. (24) In a 1992 National Abortion Federation meeting, an Ohio physician presented a paper entitled "Dilation and Extraction for Late Second Trimester Abortion," describing the procedure also known as "partial-birth abortion." (25) Anti-abortion groups obtained information about the procedure, invented the term "partial-birth" abortion and took their plan of action to the states. (26) Since 1995, thirty-one states have enacted "partial-birth" abortion bans, (27) not including new bans proposed in several states since the Carhart decision. (28)
The safest and most commonly used procedure for terminating a pregnancy in the second-trimester is Dilation and Evacuation ("D&E"). (29) In a D&E procedure, the physician dilates the cervix and evacuates the fetus and placenta using forceps. (30) Physicians may also choose to use a variation of the D&E procedure, which is known as "intact" D&E. (31) In an intact D&E procedure, the physician dilates the cervix and evacuates the fetus, but accomplishes the evacuation with the fetus largely intact. (32) Proponents of "partial-birth" abortion bans argue that the term "partial-birth" abortion only applies to the intact D&E procedure, and not to the more commonly used non-intact version of D&E. Proponents of these bans also claim that the intact D&E method is never medically necessary. (33) However, physicians experienced in second trimester abortion procedures have consistently stated that the intact version of D&E is safer for some patients. (34) Nevertheless, in 2003 Congress enacted the first federal abortion regulation, a ban on "partial-birth" abortion which did not contain an exception to protect women's health.
The federal ban defines "partial-birth" abortion as follows:
[T]he term "partial-birth abortion" means an abortion in which the person performing the abortion--(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus.... (35)
The statute subjects physicians who violate the ban to criminal punishment, including imprisonment for up to two years, and to civil liability. (36) In addition to the federal ban, a number of states have enacted their own "partial-birth" abortion bans, each of which may define the term differently. (37) Whether the federal ban and various state bans will in fact apply only to the "intact" D&E method of abortion is a matter of ongoing contention. (38)
Before Gonzales v. Carhart, in Stenberg v. Carhart, (39) a bare 5-4 majority of the Supreme Court struck down Nebraska's ban on "partial-birth" abortion. (40) The Court concluded that the ban violated a woman's constitutional right to seek an abortion for two separate reasons. First, the Nebraska law lacked any exception for cases when the procedure was needed to preserve the woman's health. (41) Second, the ban amounted to an undue burden on the right to seek pre-viability abortions because the law as written was so vague it could be applied to ban non-intact D&E, the most commonly used method of second-trimester abortion. (42)
In reaction to Stenberg, anti-abortion groups sought to have the U.S. Congress pass a federal "partial-birth" abortion ban, but President Clinton twice vetoed proposed legislation. (43) Subsequent Congresses considered similar bans, until finally on November 5, 2003, George W. Bush signed the Partial-Birth Abortion Ban Act of 2003 ("the Act"). (44) The Act was immediately challenged in three federal courts. All six courts that reviewed the Act--three district courts and three appellate courts--found the Act unconstitutional. (45)
Despite the lack of a circuit split, the Supreme Court granted review of decisions from both the Eighth and Ninth Circuits. Previously in Stenberg, Justice O'Connor had provided the crucial fifth vote to strike down Nebraska's "partial-birth" abortion ban, (46) but given the changed composition of the Court commentators speculated that the new conservative majority would overrule Stenberg outright. (47) In fact, the Carhart Court took the approach of surreptiously overruling precedent. (48) The majority opinion claimed to uphold Stenberg by distinguishing the terms of the statutes at issue in the two cases, but instead gutted Stenberg's main principles as well as reversed longstanding precedent requiring a health exception in abortion regulations. (49)
In the 5-4 decision written by Justice Kennedy, Carhart upheld the constitutionality of the Act. The Court concluded that the Act does not restrict first-trimester abortions. (50) The Court also decided that the Act does not prohibit what Justice Kennedy termed a "standard" D&E, but only prohibits intact D&E. (51)
In upholding the Act, the Court rejected three constitutional claims put forth by the physicians challenging its provisions. First, the physicians argued that the Act places an undue burden on women's right to choose abortion previability because its operative language is so vague that it also bans non-intact D&E, the safest and most commonly used method of second-trimester abortion. (52) With respect to the undue burden argument, the Court interpreted the Act to apply only when a physician "intends" to perform an intact D&E. The plaintiff physicians had presented evidence that any D&E has the potential to violate the Act, because doctors cannot predict beforehand how much the cervix will dilate. Either variation of the D&E requires that physicians dilate the cervix in order to evacuate the fetus and placenta. If the cervix dilates to a sufficient degree, the fetus may inadvertently be removed intact and thus subject physicians to criminal punishment under the Act. Although the Court acknowledged that a D&E procedure could "accidentally" result in the removal of an intact fetus, (53) the Court opined that the Act's intent requirement would "preclude liability from attaching to an accidental intact D&E." (54) The Court also claimed that "an intact delivery is almost always a conscious choice rather than a happenstance," because physicians may alter the techniques of the procedure in a manner that decreases the likelihood of an intact D&E. (55)
Second, the Court rejected the physicians' claim that the Act is unconstitutionally vague because it imposes criminal liability without providing sufficient notice to physicians of what procedures are banned and encourages arbitrary and discriminatory enforcement. (56) The Court concluded that the "anatomical landmarks" laid out in the Act, plus the requirement of an "overt act" killing the fetus after delivery to an anatomical landmark, made sufficiently clear to physicians the conduct banned by the Act. (57) However, as the evidence admittedly showed, the non-intact D&E procedure could result in a fetus being accidentally delivered to the anatomical landmark. Again, the Court emphasized that the "scienter requirement" alleviated vagueness concerns, because "[i]f a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable." (58)
Third and most striking, the Court rejected the argument that the Act fails constitutional scrutiny because it lacks a health exception. Previously, in Planned Parenthood v. Casey, the Court had reaffirmed Roe v. Wade's (59) holding that abortion regulations must have an exception to protect women's health, even after viability. (60) In Stenberg, the Court reaffirmed the requirement for a health exception whenever "substantial medical authority" supports the medical necessity of the banned procedure. (61) Thus, even where there is a lack of consensus in the medical community, Stenberg mandated that legislatures err on the side of protecting women's health. (62) Carhart found exactly the opposite, holding that legislatures could choose to err on the side of risking women's health: "Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends." (63) The physicians challenging the Act had presented substantial evidence, accepted by six different federal courts, that the intact D&E procedure is medically necessary in some cases, especially for women with certain medical conditions. (64) Although the Act permits physicians to perform an intact D&E if the physician first causes fetal demise, the evidence also showed that the methods for causing fetal demise presented health risks to patients. (65) The majority in Carhart acknowledged that the requirements of the Act may in fact endanger women's health, but nevertheless concluded that legislatures could impose those risks on women. (66)
In discussing the health exception, the Court also suggested that it would not be as amenable to facial challenges to abortion regulations--the typical manner of challenging abortion restrictions. (67) Instead, the Court held that physicians must seek individual exemptions using as-applied challenges in order to obtain health exceptions for patients burdened by the Act. (68)
In a sharply worded dissent, Justice Ginsburg condemned the Court's retreat from protecting women's health. She emphasized that the Court's precedents had always mandated exceptions to abortion restrictions for women's health "at any stage of pregnancy." (69) She further noted that Stenberg had expressly rejected a ban on intact D&E due to its lack of a health exception. (70) Criticizing Congress' inaccurate findings of fact, Ginsburg reviewed in detail the factual findings of three district courts that "the safety advantages of intact D&E are marked for women with certain medical conditions...." (71) Ginsburg found the Court's claim that the Act can survive in the face of medical uncertainty "bewildering" (72) and repeatedly stressed that the Court "def[ied] [its] longstanding precedent affirming the necessity of a health exception, with no carve-out for circumstances of medical uncertainty." (73)
Moreover, Ginsburg argued that the Court's justifications for upholding the Act were "flimsy and transparent," since "the law saves not a single fetus from destruction, for it targets only a method of performing abortion ... and surely the statute was not designed to protect the lives or health of pregnant women." (74) In this regard, Ginsburg remarked on the peculiarities of the Court's rhetoric throughout the opinion: "[T]he opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label 'abortion doctor'.... A fetus is described as an 'unborn child' and as a 'baby'; second-trimester, pre-viability abortions are referred to as 'late-term'; and the reasoned medical judgments of highly trained doctors are dismissed as 'preferences' motivated by 'mere convenience." (75) Ultimately, Ginsburg concluded that the Act is "irrational" since it does not further any legitimate government interest. She asserted that the Act's true purpose, as well as the purpose of the Court's defense of the Act, was to "chip away at a right declared again and again by this Court--and with increasing comprehension of its centrality to women's lives." (76)
III. THE PHYSICIAN & PATIENT: INFORMED CONSENT, AUTONOMY & ABORTION LAW
Informed consent law establishes the legal rules regarding patient medical decision-making, and therefore provides a useful lens through which to critique abortion law's treatment of women as healthcare decision-makers. By now a well-established principle in healthcare law, the common law rule of informed consent rejects a paternalistic model of patient decision-making in which the physician makes treatment decisions for the patient and instead embodies a model recognizing that competent adult patients have the capacity to make their own medical treatment decisions. The Supreme Court has at times relied on the private law doctrine of informed consent as a guide in interpreting patients' rights related to medical treatment under the Due Process Clause. (77) If we applied this same model of patient decision-making to abortion law, we would see some very different results. This section sets forth the basic principles underlying the law of informed consent in the physician-patient relationship. It then compares "informed consent" terminology as used in abortion law. This comparison exposes abortion law's treatment of women as less capable decision-makers than other patients.
A. Informed Consent in the Healthcare Context
An extensive literature has developed on informed consent law. (78) This section provides a brief sketch of the rules and debates surrounding the law of informed consent. It emphasizes informed consent's underlying principle of respect for patient autonomy, which is of special relevance to the question of the law's treatment of patient capacity for medical decision-making.
Informed consent doctrine was originally established through the common law, and has since been codified in all states. Commentators attribute the first definitive statement of the concept of the informed consent doctrine to Justice Cardozo's oft-quoted pronouncement in Schloendorff v. Society of New York Hospitals: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits assault." (79) The subsequent development of informed consent doctrine has largely reflected the Schloendorff court's concern with a patient's right to bodily integrity and self-determination in medical treatment. (80)
The term "informed consent" was later used for the first time in the watershed case of Salgo v. Leland Stanford Jr. University Board of Trustees. (81) Salgo discussed the obligation of physicians to disclose "any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment." (82) The Salgo court opined that rigid rules regarding the specific content of the disclosure would not be appropriate, recognizing:
[T]hat each patient presents a separate problem, that the patient's mental and emotional condition is important and in certain cases may be crucial, and that in discussing the element of risk a certain amount of discretion must be employed consistent with the full disclosure of facts necessary to an informed consent. (83)
In many ways, informed consent law today generally still follows Salgo's vision.
The early case law permitting recovery for failure to obtain informed consent sounded in battery. When the physician performed a procedure without obtaining the patient's consent, either because the physician misled the patient about the nature of the procedure or because the physician exceeded the bounds of the consent obtained, courts treated the physician's actions as nonconsensual contact amounting to a battery. (84) For example, in Mohr v. Williams, (85) the patient brought a claim for battery on the ground that the physician operated on her left ear when she had only consented to an operation on her right ear. (86) The court noted that the operation was performed without negligence, but nevertheless held that a claim for battery could lie merely upon proof that the operation was performed without the patient's consent. (87) Mohr emphasized the value of bodily integrity in allowing liability without proof of bad intent or negligence:
It cannot be doubted that the patient must be consulted, and his consent given, before a physician may operate upon him.... Under a free government, the free citizen's first and greatest right, which underlies all others--the right to the inviolability of his person; in other words, the right to himself--is the subject of universal acquiescence.... (88)
The court's recognition that medical treatment without consent constituted a battery "was a critical step in establishing patients' unequivocal right to control access to their bodies." (89) The Supreme Court later relied on informed consent law's emphasis on protecting bodily integrity to recognize a patient's constitutional right to refuse medical treatment under the Due Process Clause. (90)
Despite the common law requirement of consent to treatment, physicians could easily evade a battery claim with a generic consent form that in practice provided patients little opportunity for meaningful consent. (91) Courts and commentators later concluded that patients who are unaware of the risks, benefits and alternatives to a particular treatment cannot effectively render their consent to treatment. (92) Consent to medical treatment means more than mere consent to bodily contact; it means respect for patient capacity for self-determination given accurate, unbiased information. Thus, the notion of informed consent also encompasses a duty of the physician to make adequate disclosures to the patient. Courts have considered failure to provide sufficient information a breach of the physician's duty to meet the appropriate standard of care. (93) Hence, informed consent malpractice actions based on lack of adequate disclosures have sounded in negligence theory rather than battery.
The leading case on the negligence theory of informed consent, Natanson v. Kline, (94) explained that "the relation between the physician and his patient is a fiduciary one, and therefore the physician has an obligation to make a full and frank disclosure to the patient of all pertinent facts related to his illness." (95) The court noted that the physician may be acting "in relatively good faith for the benefit of the patient" but nevertheless is liable for failure to disclose. (96) Natanson affirmed that the corollary principle to protection of a patient's bodily integrity is protection of a patient's right of decision-making. In particular, Natanson emphasized that "a doctor might well believe that an operation or form of treatment is desirable or necessary but the law does not permit him to substitute his own judgment for that of the patient by any form of artifice or deception." (97) Other jurisdictions followed Natanson, expanding liability for failure to obtain a patient's consent from a battery to a negligence theory based on a lack of full disclosure and broadly establishing a patient's right to self-determination. (98)
The development of informed consent common law continued in Canterbury v. Spence, (99) one of the leading cases articulating the parameters of informed consent law. (100) There, the court explored the "first principles" of the doctrine in detail and placed great emphasis on respect for patient decision-making capacity. (101) Canterbury notably declared: "To the physician, whose training enables a self-satisfying evaluation, the answer may seem clear, but it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie." (102) The court reasoned that informed consent liability should rest on a patient-based standard of disclosure, because "[r]espect for the patient's right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves." (103) Furthermore, Canterbury held that the disclosure must include unbiased information on all "material" risks, defining material risk as when "a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk in deciding whether or not to forego the proposed therapy." (104)
Legal liability for failure to provide information necessary to informed consent ultimately hinges on proof that the patient would have decided upon a different course of treatment or no treatment at all had there been full disclosure. Most significantly, informed consent law compels the disclosure only of accurate medical information consistent with the expert knowledge of the medical community. (105) Although debate continues as to the appropriate standards for determining the scope of information to be provided to patients, the law of informed consent consistently "reflects the notion of patient control and self-determination." (106)
A corollary to the right of informed consent is the patient's right to refuse medical treatment. In fact, the term informed "consent" is a bit misleading, because patients have the right not only to make the ultimate decision whether to accept treatment (consent), but also to refuse treatment entirely (107) Under the common law, the right to refuse medical treatment grew out of the doctrines of trespass and battery, which were applied to unauthorized contact by a physician. (108) Thus, just as courts applied a claim of battery where physicians failed to obtain consent to a procedure or performed a different procedure than the one to which the patient consented, forced medical treatment amounted to a battery. Courts eventually recognized a claim of battery for forced medical treatment even in cases where the patient refused life-saving medical treatment. As one court stated, "[there is] a well-established rule of general law ... that it is the patient, not the physician, who ultimately decides if treatment--any treatment--is to be given at all.... The rule has never been qualified in its application by either the nature or purpose of the treatment, or the gravity of the consequences of acceding to or foregoing it." (109)
In sum, battery cases focus on the patient's consent to the specific treatment or right to refuse treatment in order to respect the patient's bodily integrity, while negligence cases focus on the physician's duty to inform in order to respect the patient's right to make his or her own healthcare decisions. These twin values of bodily integrity and self-determination reflect the key underlying principle of informed consent doctrine: respect for patient autonomy. (110) Although a number of different rationales have been proposed in support of informed consent rules, informed consent law primarily serves to "protect patient dignity and autonomy." (111) As Peter Schuck argues,
The most fundamental normative argument in favor of requiring health care providers to obtain patients' informed consent to medical treatments proceeds from the principle of autonomy--the notion that each mature individual has a right to make the basic choices that affect her life prospects. (112)
Numerous scholars have noted that the doctrine operates primarily to respect the capacity of competent adults to make autonomous decisions. (113)
Although there continues to be much debate about whether informed consent functions to its ideal in clinical practice, (114) in principle at least, informed consent law reinforces the notion that competent adults have the capacity to make their own healthcare decisions. (115) There are some limited exceptions to the doctrine of informed consent; however, none of these exceptions undermine the fundamental principle that the law should protect competent adult patients' decision-making authority. (116) Informed consent law "does not accept the paternalistic notion that the physician may remain silent simply because divulgence might prompt the patient to forego therapy the physician feels the patient really needs," because "that attitude presumes instability or perversity for even the normal patient, and runs counter to the foundation principle that the patient should and ordinarily can make the choice for himself." (117)
The twin values of bodily integrity and self-determination, protected by informed consent, also underlie the "right to privacy" line of cases that support the constitutional right to abortion. (118) Yet, comparing the law of informed consent to abortion law reveals a stark difference in how the law views pregnant women as decision-makers. Abortion law ignores the long history of protection for patient decision-making capacity that has been well-established in informed consent law.
B. "Informed Consent" to Abortion from Roe to Casey
For a period of time, under the rules as established in Roe v. Wade, (119) the law generally treated women as entitled to autonomy in their abortion decision-making similar to other patients. Both the Supreme Court and lower courts' use of the general law of informed consent to guide the analysis of abortion-specific "informed consent" regulations reflected this equal treatment of women. In part because the courts viewed female patients seeking abortion as equally capable decision-makers as other patients, courts conformed the requirements of abortion "informed consent" to informed consent law as applied to all other patients.
However, abortion law's treatment of women as decision-makers has been diverging from informed consent law's treatment of patient decision-making at least since the Supreme Court's decision in Planned Parenthood v. Casey. (120) This section reviews the transformation of the Supreme Court's view of "informed consent" as it relates to abortion from Roe to Casey. It disentangles "informed consent" as (mis)used in abortion law from the general law of informed consent and demonstrates that abortion law has been treating women as less capable decision-makers for some time, well prior to Carhart.
In the landmark 1973 ruling, Roe v. Wade, the Supreme Court held that state bans on access to abortion violated a woman's constitutional rights under the Due Process Clause of the Fourteenth Amendment. (121) The Court grounded its decision in a line of "privacy" cases, which recognized the right of the individual to make decisions with respect to "marriage, procreation, contraception, family relationships, and child rearing and education." (122) The Court concluded that these rights of privacy in family life encompassed the right of a woman to decide whether to carry her pregnancy to term.
Roe provided extensive protection for women's constitutional right to abortion and declared that the right to abortion is a "fundamental right," meaning that states could restrict access to abortion only where there is a "compelling State interest." (123) The Court established a strict trimester-based framework for state regulations of abortion, holding that government only has a compelling interest in regulating abortion beginning in the second-trimester. Thus, states could enact almost no restrictions on abortion during the first-trimester; could enact restrictions necessary to protect maternal health in the second-trimester; and could ban abortion entirely in the third trimester but must make exceptions to protect maternal life and health. (124) The Court defined "health" broadly in terms of the health exception requirement. (125)
Despite this broad protection for the abortion right, Roe's rhetoric unfortunately did not evince much respect for women's decision-making capacity. Instead, the Court characterized the abortion decision as belonging primarily to the physician rather than the patient. (126) Nevertheless, under the doctrinal regime laid out by Roe, later cases placed much more emphasis on women's decisional autonomy in the abortion context. (127) Most tellingly, in a number of cases the Supreme Court struck down abortion-specific "informed consent" laws that deviated from the general law of informed consent. These precedents emphasized that women are equally entitled to make important healthcare choices and, therefore, applied the law of informed consent with equal force to women's abortion decisions. (128)
The Supreme Court addressed abortion-specific "informed consent" legislation in three cases after Roe. In each case, the Court used the...
|
