Wednesday, May 16, 2007

Gonzales v. Carhart and informed consent

I'm currently revising for publication an article (originally written last fall) on the constitutionality of abortion-specific informed consent laws -- a topic on which precious little clear-cut analysis has appeared in case law or commentary. Naturally, the challenge now is to figure out how Gonzales v. Carhart, and its strange language about informed consent -- strange because of the argument that banning a procedure somehow better informed women's choices.

Jack Balkin has suggested, quite rightly I think, that this language may spur state legislatures to be even bolder in passing requirements that ever-more specific -- and inevitably, more controversial -- statements be given to women seeking abortion about fetal development, supposed risks of abortion, et cetera. Be that as it may, it remains to be seen whether this new wave of requirements -- a wave that was already underway before the Supreme Court decision -- can themelves withstand constitutional scrutiny. Does Gonzales v. Carhart say anything new about the validity of informed consent statutes?

The argument I'm leaning towards, is, No, not really, and for a few reasons.

First, the state interests emphasized in Carhart II are the same ones identified in Planned Parenthood v. Casey: showing "respect for life," and ensuring that women's choices are fully informed, lest they regret them. Moreover, Casey had already established the informed-consent rubric could include not only information pertaining to the patient's health, but also to the fetus. Carhart II simply rephrased these principles, and implicitly accepted along with them that these interests are served only where the information is "truthful and not misleading."

Second, Carthart II did not strike a strong blow for the principle of deference to legislative factfinding. Rather, the Court seems to have bunted on this issue, as once stating that it used a "deferential standard" but that it would not give "uncritical deference" (thus muddling further its already muddled case law on this question). In fact, the Court pointed out that some of Congress's findings were wrong, and rested its conclusion on Congress's prerogative to assess the "balance of risks" in marginal cases, a classic policy judgment. This surprised me quite a bit, as I had guessed the Court would treat the deference issue, emphasized in Kennedy's Stenberg dissent, as decisive.

Now, don't get me wrong: what Kennedy actually does with these seemingly sensible puzzle pieces is incoherent and almost absurd, and promotes a deeply sexist conception of women's need to be protected from themselves in the bargain. And his reliance on an amicus brief touting the discredited "post-abortion syndrome" may be a sign that, under whatever doctrinal cloak, Kennedy may be all too sympathetic to antiabortion factual claims even if they are demonstrably bogus.

But whatever ill Carhart II may auger in other areas, the opinion, taken at its word, does not leave legislatures any freer than they were to force clinics to promulgate medical information that is dubious, outdated, or misleading. To go out on a limb just a bit, if the lower courts do engage in robust factual scrutiny of these requirements, stubborn legislators (or state health departments) could end up playing ping-pong with them, struggling to craft the most inflammatory assertions they can get away with in the face of unfavorable rulings.

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