In the latest round of litigation in Texas Physicians Providing Abortion Services v. Lakey, a three-judge panel of the US Court of Appeals for the Fifth Circuit vacated an earlier decision enjoining enforcement of Texas's Women's Right to Know Act [PDF]. The act requires that a physician make the fetal heartbeat audible and perform, explain and display a sonogram to a woman seeking an abortion. After the physician provides the patient with an additional written consent form, she must wait 24 hours before receiving an abortion. Under the act, women may refuse to listen to the fetal heartbeat for any reason. By contrast, unless a woman can prove that she falls within one of three statutory exceptions, she has to view the sonogram presented to her.
The Fifth Circuit weighed and largely rejected two constitutional claims. First, the abortion providers challenging the law suggested that some of its language is impermissibly vague under the Due Process Clause of the Fourteenth Amendment. The second and more substantial claim involves providers' First Amendment right against compelled speech. Requiring physicians to perform and describe the results of a sonogram, the argument goes, forces them to endorse an ideological message with which they might not agree. What was striking to me was not the fact that the three-judge panel vacated the injunction. Instead, Lakey is notable for its sweeping endorsement of informed consent abortion restrictions.
This apparent endorsement came in Chief Judge Edith Jones's summary of the supposed lessons of earlier constitutional decisions on informed consent. First, Jones explained, informed consent laws met constitutional muster if they did not constitute an undue burden on a woman's right to choose abortion and if the law required providers to make "truthful, non-misleading, and relevant disclosures." Second, such laws did not really regulate the speech of providers at all. Instead, these measures made up "part of the state's reasonable regulation of medical practice." Finally, Jones concluded, the state's interest in unborn life counted as one of the areas of discussion that the law could require.
Taken in context, Lakey suggests a rejection of most First Amendment challenges to informed consent laws. The most viable strategy for attacking such a law, Lakey implies, involves Roe v. Wade and a woman's right to choose abortion. What of a provider's right against compelled speech? Lakey tells us first that providers reciting the information required by such a law are not speaking at all. Instead, they are practicing medicine, an act that the state has an almost unfettered ability to restrict. As importantly, Lakey defines as relevant (and perhaps true and non-misleading) the state's interest in fetal life. The breadth of this decision impressed even one of the judges concurring with Jones's opinion, who cautioned that the Supreme Court's previous opinions opened "no unfettered pathway for states to suppress abortions through the medium of informed consent."
The potential sweep of Lakey matters partly because the decision comes during a time of renaissance for informed consent antiabortion restrictions. In 2011, 18 states had laws on the books requiring a woman to view a sonogram before an abortion was performed, and just last year, state legislatures introduced 27 additional informed consent bills.
What is behind the growing interest in informed consent laws? The embrace of "right to know" measures figures centrally in two trends that dominate mainstream antiabortion activism. First, informed consent laws reflect the priority that the movement assigns to woman-protective arguments. "Right to know" laws require women to consider much of the evidence and arguments for a right to life, but the rationale for these laws turns on the protection women supposedly require against the adverse consequences of an abortion decision.
Second, and perhaps more importantly, "right to know" laws signal the influence of incrementalism in the mainstream movement. Instead of challenging Roe head on, and instead of directly defending a constitutional right to live, incrementalists seek to chip away at Roe. As one incrementalist described the strategy to me, the movement publicly assumes the legitimacy Roe while working to litigate it slowly to death.
Incrementalism divides the antiabortion movement. Some activists, like those who have sponsored personhood amendments to state constitutions, reject some incrementalist strategies as unprincipled and counterproductive. Nonetheless, as the success of "right to know" laws suggests, incrementalism seems to be on the rise. One of the best ways to chip away at Roe, as Lakey suggests, is to redefine it.
Consider the kind of redefinition involved in "right to know" laws. Statutes like the one at issue in Lakey draw on and rework the constitutional values of choice and autonomy set out in Roe v. Wade and Planed Parenthood v. Casey. Both decisions suggest that the momentous consequences of an abortion decision for a woman partly justify the constitutional protections the decision receives. If women rear the children they bear, they may lose out on important life opportunities. "Right to know" laws turn this argument on its head. The important consequences of an abortion decision become a justification for restrictions on abortion. The right to choose becomes a right to know.
What lessons can each side draw from Lakey and the informed consent renaissance? For abortion opponents, Lakey signals that some federal courts will be receptive to the new consent laws they champion. For the pro-choice movement, Lakey highlights some of the perils linked to the choice-based framework advocates have advanced. "Right to know" laws partly reflect anxiety and ignorance about how abortion care really works. Supporters of the laws assert that, in order to secure a profit, some providers do not fully inform a woman about what an abortion is. Simply relying on the concepts of rights to choice or equal treatment does not always provide an effective counterargument to these assertions. As importantly, "right to know" laws should remind the pro-choice movement of the ease with which the other side can benefit from the idea of decisional autonomy. Proponents of legal abortion are not the only ones who benefit by claiming to be pro-choice.
Mary Ziegler is an Assistant Professor of Law at Saint Louis University School of Law. Her publications include articles on the same-sex marriage debate, reproductive rights and the history of the American eugenic legal reform movement. Prior to her position at Saint Louis University, she served as the Oscar M. Ruebhausen Fellow in Law at Yale Law School, and as a clerk for Justice John Dooley of the Vermont Supreme Court.
Suggested citation: Mary Ziegler, Redefining Roe: Informed Consent and the Abortion Debate, JURIST - Forum, Jan. 24, 2012, http://jurist.org/forum/2012/01/mary-ziegler-informed-consent.php.
This article was prepared for publication by Caleb Pittman, an assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org