Abortion fight over informed consent

U.S. appeals court hears challenge to law in South Dakota

April 12, 2007|By Stephanie Simon | Stephanie Simon,Los Angeles Times

The most intense battleground in the abortion debate these days revolves around a simple question: What do women need to know before they terminate a pregnancy?

South Dakota lawmakers want to compel doctors - under penalty of a month in jail - to tell women that the abortion they seek will kill a "whole, separate, unique, living human being."

South Carolina is on the verge of requiring women to review ultrasound images of their fetus with a physician before consenting to end the pregnancy. In Mississippi, women must be given a chance to listen in as the doctor checks the fetal heartbeat.

To anti-abortion activist Leslee Unruh, such laws represent protection. Unruh had an abortion decades ago and has mourned that decision ever since; she believes she can save other women similar anguish by making sure that they know precisely what they'll be losing if they end a pregnancy.

"I was told [the fetus] was just a blob, nothing more. When you're in a crisis, you want to believe lots of things," Unruh said. She later came to see the "blob" as a baby who should have been her child and says she hears similar stories every day at her counseling center in Sioux Falls, S.D: "The women come to us saying they weren't informed."

Informed-consent laws are not new or unusual; 32 states have them. In their most basic form, they require women to be offered pamphlets explaining fetal development and describing alternatives to abortion.

Increasingly, however, anti-abortion activists have been pushing for women to receive more detailed - and more emotionally charged - information. Legislators last year introduced 92 bills to expand informed-consent laws, according to the Center for Reproductive Rights, which opposes such legislation.

Abortion-rights activists consider informed consent a sham - a not-so-subtle means to scare, mislead or shame women into backing out of a decision they've made after careful consideration.

The most contested of these laws is South Dakota's, which was tested yesterday in federal court.

The law sets out a long list of warnings that doctors who perform abortions must read to each patient, pausing to make sure she understands and signs each page of the form. The woman must be told that having an abortion could make her suicidal, subject her to "psychological distress," and put her at risk for infection, infertility and even death.

She must be told that the abortion will terminate a human being's life and end her "existing relationship" with her fetus, described in the statute as an "unborn child."

Patients must be given at least two hours to ponder this information before their abortion. Doctors who do not follow the law are subject to criminal prosecution.

In the hearing yesterday before the 8th Circuit Court of Appeals in St. Louis, attorneys for Planned Parenthood argued that the law violates physicians' right to free speech and substitutes ideology for science. In particular, they're concerned about doctors being forced to call a fetus - even at the earliest stages of gestation - a "human being."

The South Dakota legislature passed the informed-consent provision in 2005, but Planned Parenthood sued to block it. A district court judge ruled that the law could not take effect until the suit was resolved. The state appealed that decision to a three-judge panel of the 8th Circuit Court of Appeals, which ruled in October that the law should remain blocked. In an unusual move, the circuit court then voted to hear the case again before the entire bench of 11 judges.

Stephanie Simon writes for the Los Angeles Times.

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