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...with the outgoing House of Representatives nearly passing national fetal pain bill in late 2006. (2) These measures are the latest in a growing body of specific informational requirements for abortion procedures, many steeped in scientific controversy. Nearly all of these measures are titled "Woman's Right to Know Acts." (3) These laws abandon well-settled principles of informed consent--which give discretion to medical professionals to determine what information is crucial for patients--in favor of legislative judgments about what particular facts should be told to patients and how these facts should be shared.
Informed consent to medical treatment consists of three essential elements: communication of necessary information, comprehension of that information by the patient, and subsequent consent to treatment. (4) The information that must be communicated includes three key elements: the risks of the proposed treatment, viable alternative treatments, and likely outcomes in the absence of treatment. (5) In every doctor-patient relationship, doctors are bound by law to apply these principles on the basis of their best medical judgment:
Of necessity, the content of the disclosure rests in the first instance with the physician. Ordinarily, it is only he who is in position to identify particular dangers; always he must make a judgment, in terms of materiality, as to whether and to what extent revelation to the patient is called for. (6)
These principles, long recognized by the common law, (7) have been codified in state statutes typically requiring that, for any medical treatment, patients be provided with "a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures." (8) Some states have informed consent laws addressing areas as diverse as breast cancer and psychiatric treatment, (9) but the most commonly regulated procedure is abortion. At least thirty-two states have specific informed consent requirements for abortion, (10) and similar provisions have been proposed in other states. (11)
While most abortion-specific informed consent laws simply track common law principles, some do more. In a handful of states, these laws require that specific risks be discussed with patients; some specify statements that must be made, including controversial statements about fetal pain, breast cancer risk, and psychological harms. (12) In many more states, doctor-patient conversations must be supplemented with literature discussing possible risks in terms mandated by the state. (13) Most recently, states have begun requiring statements like the following, which appears in the statutes of four states:
By 20 weeks' gestation, the unborn child has the physical structures necessary to experience pain. There is evidence that by 20 weeks' gestation unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted to be a response to pain. Anesthesia is routinely administered to unborn children who are 20 weeks' gestational age or older who undergo prenatal surgery. (14)
As will be discussed, each of these statements misrepresents current medical knowledge. (15) Reproductive rights advocates have criticized these provisions, and at times challenged them in court, for removing the discretion traditionally given to doctors and for potentially misleading women. (16) To date, however, litigation on mandated abortion information has been sparse. A few requirements have been invalidated, and others saved by narrowing constructions; across these cases, judicial opinions have been short on clear analysis. New provisions relating to fetal pain have yet to be challenged in court.
This Article argues that, to the extent these laws go beyond flagging topics that should be discussed by health care providers and prescribe specific factual claims that must be conveyed to patients, they should be subject to non-deferential judicial review of their accuracy and fairness. Part I provides an overview of abortion informed consent jurisprudence since Planned Parenthood of Southeastern Pennsylvania v. Casey. (17) Part II suggests a framework for analyzing challenges to specific informed consent provisions. Part II.A argues that false or misleading statements are unconstitutional under either the undue burden or rational basis standards. Part II.B proposes false advertising cases as an instructive analogue, arguing that the accuracy of informed consent provisions should be analyzed similarly. Part II.C considers the principle of judicial deference to legislative fact-finding from several angles, and argues that it should be applied in weak form, or not at all, in the informed consent context. Part III analyzes several states' mandated information on fetal pain within this framework and concludes that they are unconstitutional.
I. BACKGROUND
A. Truthful and Not Misleading Disclosures Are Not an Undue Burden
The plurality in Casey upheld a typical informed consent law, which required that providers inform patients of the nature of the procedure, the health risks of the procedure, and the "probable gestational age of the unborn child," as well as the availability of printed information about fetal development, prenatal care, child support, and adoption services. (18) The Court regarded these requirements as "no different from a requirement that a doctor give certain specific information about any medical procedure." (19) Overruling prior decisions, (20) the plurality found it of no consequence that some of the provisions did not concern the patient's health but instead served to "express[] a preference for childbirth over abortion." (21) As will be discussed below, however, the plurality also indicated that the required disclosure should be "truthful and not misleading." (22)
Subsequent challenges to informed consent laws have largely centered on the burdens imposed by their procedural requirements, such as twenty-four or forty-eight hour waiting periods or requirements that information be given in person by a physician. (23) Post-Casey, such challenges have generally failed, (24) except where a state constitution imposed strict scrutiny (25) or the statute failed to provide a health exception. (26)
B. Construing Informed Consent Laws to Avoid Constitutional Violations
Where plaintiffs have challenged the substance of informed consent provisions, courts have most often construed those provisions in such a way as to avoid any constitutional problems. In so doing, courts have avoided deciding what it would take to find such provisions unconstitutional. (27) In a recent case, a Missouri clinic challenged the state's law requiring physicians to discuss with patients "the indicators and contraindicators, and risk factors including any physical, psychological, or situational factors for the proposed procedure." (28) Missouri's Supreme Court held that the state's abortion statute permits physicians to "exercise [their] professional judgment" in discussing risk factors, and thus "imposes no duty regarding the extent of consultation between a physician and a patient seeking an abortion additional to that already required by common law." (29) Rejecting challenges to a requirement to discuss risks "that a reasonable patient would consider material," Florida's high court similarly read in the words "under the circumstances" from the state's general informed consent law, rendering the provision "a neutral informed consent statute ... comparable to the common law and to [statutes applicable to other procedures]." (30)
Wisconsin's law went beyond covering general topics such as medical risks and gestational age; it also specified discussion of "the risks of infection, psychological trauma, hemorrhage, endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies and infertility." (31) However, the Seventh Circuit construed Wisconsin's law to allow each physician to "rely on his or her 'best medical judgment' in determining the content of the information that needs to be disclosed." (32) Additionally, in upholding state-mandated printed materials, courts have emphasized that clinicians "may dissociate themselves from the materials and may, or may not, comment on them as they choose." (33)
In perhaps the most interesting such case, the district court asked "whether it is truthful and not misleading to inform a woman that a nonviable unborn child at more than nineteen week gestation 'may be able to survive' outside the womb." (34) Faced with a complex and conflicting factual record, the court could only conclude that "the definition of the term survive varies among practitioners and medical situations." (35) To avoid any misleading effect, the court construed the statute to require:
1) a full and complete definition of the term "survive" in accordance with the physician's good faith clinical judgment; 2) the nature of any survival; 3) survival is merely a possibility; 4) survival will or may be of extremely limited duration. (36)
The court noted that this interpretation was supported by the declared statutory purpose of providing complete information. (37)
C. Compelled Speech Claims
In addition to due process claims, informed consent laws have been challenged by abortion providers on their own behalf as a form of compelled speech. (38) The Casey plurality breezily dismissed such a claim on the grounds that Pennsylvania's requirements were part of reasonable state regulation of medicine. (39) Plaintiffs have been unsuccessful in distinguishing Casey, with courts emphasizing that "no provision of the [law] prohibits a physician from explaining, criticizing or disavowing the State's information." (40)
In Planned Parenthood Minnesota v. Rounds, a South Dakota statute required that patients be told that "the abortion will terminate the life of a whole, separate, unique, living human being," that she "has an existing relationship with that unborn human being" protected by the Constitution; and that an abortion would terminate that relationship and those protections. (41) The district court stated that the plaintiffs had been impermissibly required to "enunciate the State's viewpoint on an unsettled medical, philosophical, theological, and scientific issue, that is, whether a fetus is a human being." (42) An Eighth Circuit panel affirmed, and rehearing en banc was granted in January 2007. (43)
D. Rulings on Substantive Provisions
Courts have shown little willingness to find truthful printed materials misleading. A Kentucky federal district court held with little discussion that the use of enlarged and color enhanced photographs of fetal development was not misleading. (44) One Alabama district court did enjoin that state's mandated-materials provision pending further consideration of whether some information was misleading. (45) While noting that "credible experts presented conflicting testimony as to the truthfulness and accuracy of factual data in the materials," the court gave no indication of what analytical approach it would apply. (46) The suit was ultimately settled with the state agreeing to various modifications in the materials, including removal of a mention of the alleged abortion-breast cancer link, much touted by opponents of abortion access but unsubstantiated by evidence. (47)
Courts have, however, invalidated the application of some requirements to groups of women for whom certain information would be utterly irrelevant. In an early case, the Eighth Circuit found a law requiring that women be told that their parental rights would be terminated if their abortions resulted in live births would never be relevant to early pregnancies which could not result in live births. (48) Similarly, a court recently invalidated mandated disclosures relating to adoption and early childhood care as applied to women with ectopic pregnancies or lethal fetal anomalies. (49) Both decisions recognized that, for some women, this information would serve no purpose other than to distress and thus, the legislation was irrational. (50)
Finally, in the Rounds case discussed previously, the trial court failed to reach the claim that the South Dakota law violated the Fourteenth Amendment by "forcing women to receive untrue, misleading information." (51) The Eighth Circuit affirmed on this alternative ground as well, finding "at least a 'fair chance' that [the challenged provisions] pose an undue burden" for essentially the same reasons that they likely violated the First Amendment. (52)
E. Informed Consent in Gonzales v. Carhart
Much has been made of Justice Kennedy's statements about informed consent in Gonzales v. Carhart (Carhart II), (53) which upheld not an informed consent statute, but a ban on a particular abortion procedure. Kennedy, writing for the Court, rested the validity of the Partial-Birth Abortion Ban Act on "the knowledge it conveys" to pregnant women about "shocking methods" of abortion, which might encourage women to forego abortion, and doctors to rethink their methods. (54) "The State," the Court wrote, "has an interest in ensuring so grave a choice [as abortion, and particularly abortion of this type] is well-informed." (55) The Court elaborated that
[t]he State's interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. (56)
In dissent, Justice Ginsburg complained that the majority's talk of "conveying knowledge" was a non sequitur since the issue at hand was not more information but a flat prohibition. (57) Moreover, Ginsburg objected to the Court's statement, admittedly based on "no reliable data," that full disclosure was important because abortion could lead to "[s]evere depression and loss of esteem." (58) Ginsburg charged that resting constitutional analysis on such speculation "reflects ancient notions about women's place in the family and under the Constitution ... that have long since been discredited." (59) Justice Kennedy's citation for these arguments to an amicus brief describing the discredited "post-abortion syndrome" (60) does suggest sympathy with a growing strain of anti-abortion rhetoric that describes abortion as by its nature harmful to women. (61)
Professor Jack Balkin has speculated that Kennedy's statements might impact state informed consent laws:
[Carhart II] might lead states to pass a wide range of new laws under the rubric of "informed consent" that would require doctors to show women the results of ultrasound imaging of the fetus before it is aborted, to describe in gruesome detail how the fetus will be terminated, dismembered and removed, to offer the state's views on the existence of any pain the fetus might feel when it is destroyed; and, in general, ratchet up the emotional anxiety of women who are about to undergo abortions. (62)
The Court's language may indeed embolden state legislators, leading to new legislation and litigation in this area. Yet, if taken at face value, it is questionable whether Carhart II signifies any real change in doctrine with regard to informed consent. The interests identified by the Court--"respect for life" and "ensuring so grave a choice is well-informed" (63)--are the same ones described in Casey. (64) The position that informed consent requirements may include not just matters affecting the pregnant woman's health but also information about the fetus and the procedure, is also found in Casey. (65) Even the concern that uninformed consent to abortion may have "devastating psychological consequences" comes straight from Casey. (66) While the rhetoric of Carhart II may suggest sympathy for assertions of harmful effects from abortion itself, it gives no indication of altering the "truthful and not misleading" standard central in Casey; indeed, the very use of the phrase "well-informed" reinforces that standard.
II. A FRAMEWORK FOR ANALYZING INFORMED CONSENT CHALLENGES
A. The Relationship Between "Undue Burden" and "Truthful and Not Misleading"
1. False or Misleading Statements as Per Se Undue Burden
In upholding Pennsylvania's informed consent requirements, the Casey plurality held that a state may seek to ensure "that a woman be apprised of the health risks of abortion and childbirth," and may even provide information that "expresses...
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