Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws
Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws
Harper Jean Tobin, 17 Colum. J. Gender & L. 111 (2008)
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. 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.