The Abortion Informed Consent Debate: More Light, Less Heat

Nadia N. Sawicki, Loyola University Chicago

Abstract

State abortion informed consent laws – including those requiring physicians to disclose that abortion terminates the life of a “whole, separate, unique, living human being” or display ultrasound images to patients seeking abortions – are being adopted at a rapid pace. Health law scholars who oppose these laws uniformly criticize them as being fundamentally inconsistent with the doctrine of informed consent. This Article directly challenges this conventional approach. It argues that the doctrine of informed consent does not impose nearly as significant a barrier to abortion disclosure laws as many critics claim. Rather, the ethical and legal principles of informed consent recognize the legitimacy of physician persuasion; take into account social values in determining the scope of information to be disclosed; and give physicians broad discretion in deciding how to communicate with their patients.

My hope is that this Article, which emphasizes a more nuanced understanding of the doctrine of informed consent, will help defuse and civilize much of the heated debate surrounding this new breed of abortion disclosure requirements. It offers critics of abortion disclosure laws an opportunity to strengthen their challenges to some of the laws’ most problematic provisions. More importantly, however, the analysis in this Article may encourage critics of abortion disclosure laws to shift their focus from informed consent-based arguments towards potentially more persuasive arguments grounded in public policy or constitutional theory.