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Unpublished Paper
Federally Mandated Informed Consent: Has Government Gone Too Far?
ExpressO (2007)
  • Linda P. McKenzie

In 2003, President George W. Bush signed legislation targeted at preventing what lawmakers said was a single, specific abortion procedure. The bill banned a method that is known outside of the medical community as "partial birth abortion." Lower courts, however, struck down the law as a violation of the Supreme Court's requirement that state limits on abortion must include an exception for the life or health of the pregnant woman. The lower courts were upheld by the three circuit courts who reviewed the Partial Birth Abortion Ban Act of 2003. The U.S. Supreme Court accepted certiorari and recently heard oral argument in two of the cases to definitively determine the destiny of this controversial legislation.

In the interim, the 109th Congress considered a new abortion control measure, which critics described as an attempt to circumvent the judicial system. Under this legislation, physicians violate the law unless they inform patients who have attained thirteen and one third weeks of pregnancy that "the process of being killed in an abortion will cause the unborn child pain." Sponsors claimed that the bill merely required "informed consent" but opponents contended that the language was meant to dissuade women from undergoing second trimester abortions.

Laws mandating disclosure of particular information exist primarily in the area of reproductive health and most often apply to women seeking abortion. This paper discusses the legal and ethical issues that arise when lawmakers decide what patients must be told before they can access certain medical procedures, focusing on: the ethical implications of informed consent laws; constitutional concerns raised by mandatory informed consent; two recent pieces of federal legislation with the potential to significantly affect abortion practice and the lives of pregnant women; and finally the reaction to publication in the August 2005 issue of the Journal of the American Medical Association of the findings of a team of physicians at the University of California at San Francisco discrediting the scientific support underlying the controversial bill.

  • women's health,
  • abortion law,
  • health law
Publication Date
March, 2007
Citation Information
Linda P. McKenzie. "Federally Mandated Informed Consent: Has Government Gone Too Far?" ExpressO (2007)
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