The Politics of Information: Informed Consent in Abortion and End-of-Life Decision Making

Sonia M. Suter

doi:10.1177/009885881303900101

The Politics of Information: Informed Consent in Abortion and End-of-Life Decision Making

Published online by Cambridge University Press: 06 January 2021

Sonia M. Suter

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Sonia M. Suter*: Affiliation:
The George Washington University Law School; Michigan State University; University of Michigan

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The politics of reproduction dominate the political landscape now more than ever. One area of controversy has been informed consent statutes for abortion, which have been praised by the pro-life movement but derided by the pro-choice movement. More recently, legislatures have begun to enact informed consent statutes with respect to end-of-life decision making, an area almost as politically controversial as abortion. Like many abortion disclosure laws, some of these have been entitled “Right to Know” statutes. Yet, the supporters and opponents of each set of statutes tend not to be the same, aligning to a large extent based on their place in the culture wars over life and death.

In this Article, I strive not only to show the remarkably similar critiques each side marshals but also to use these concerns to think in more nuanced ways about the goals of informed consent and whether the disclosure mandates achieve those goals. I first argue in favor of the aspirational goals of informed consent as a process that allows patients to participate in their medical decision making. While conceding the inherently political nature of abortion and end-of-life care, I also contend that the significance of decisions regarding those matters warrants, at least in theory, legislative efforts to ensure that patients have the opportunity to engage in deliberative and informed decision making.

In describing and responding to the similar critiques of both sets of laws—the political bias of the statutes; the efforts to persuade, especially with non-medical information; the potential vulnerability of the targeted audience; and the interference with physician discretion—I uncover and challenge some of the presumptions about informed consent inherent in those critiques. Although information that persuades or influences is not per se problematic, I argue that disclosure of information that is inaccurate, untrue, or emotionally inflammatory harms informed consent. Even well-crafted informed consent mandates, however, are insufficient to promote truly deliberative decision making because they oversimplify the complexity of these decisions and fail to respond to the fact that informed consent is a process that requires more than simply the delivery of information; it also requires dialogue and discussion. This Article ends with suggestions for ways to try to promote such a dialogue.

Type: Article
Information: American Journal of Law & Medicine , Volume 39 , Issue 1 , March 2013 , pp. 7 - 61

DOI: https://doi.org/10.1177/009885881303900101 [Opens in a new window]
Copyright: Copyright © American Society of Law, Medicine and Ethics and Boston University 2013

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1 505 U.S. 833 (1992).

2 Id. at 882.

3 I limit my focus here to abortion and end-of-life decision making since these are areas in which the legislatures have enacted specific informed consent laws. It is worth noting, however, that mandated informed consent has increasingly become a topic of interest to legislators across the country, not just in the medical context. See, e.g., Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure, 159 U. PA. L. REV. 647 (2011) (describing mandated disclosure with respect to consumer and borrower protection, contract formation, constitutional rights, as well as medical procedures). In addition, the Patient Protection and Affordable Care Act (PPACA) establishes a “wide range of demonstration projects and awards to fund research on outcomes and effectiveness” and mandates “wide dissemination [of the results] to other government agencies, providers, and the public generally.” Barry Furrow, Regulating Patient Safety: The Patient Protection and Affordable Care Act, 159 U. PA. L. REV. 1727, 1749 (2011). In addition, PPACA mandates the use of decision aids for “preference sensitive care,” that is, care for which there is no evidence-based reason to support one treatment option over another. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 3506, 124 Stat. 119, 528 (2010) (codified as amended at 42 U.S.C.A. § 299b-36 (West 2010)). As Professor Furrow notes, the “goal is to give patients full information about treatment tradeoffs and ensure that patient preferences are incorporated into the treatment plan.” Furrow, supra, at 1765. “[Decision aids] are decision support tools that provide patients with detailed and specific information on options and outcomes, help them clarify their values, and guide them through the decision making process.” Elie A. Akl et al., A Decision Aid for COPD Patients Considering Inhaled Steroid Therapy: Development and Before and After Pilot Testing, BMC MED. INFORMATICS & DECISION MAKING (May 15, 2007), http://www.biomedcentral.com/1472-6947/7/12.

4 The existence of such structural obstacles has been established far more fully in the end-of-life context than in the abortion context. See infra text accompanying notes 297-99, 301-03.

5 105 N.E. 92 (N.Y. 1914); see also BARRY R. FURROW ET AL., HEALTH LAW: CASES, MATERIALS AND PROBLEMS 230-31 (6th ed. 2008).

6 Schloendorff, 105 N.E. at 93.

7 In Schloendorff, the plaintiff alleged that the surgeon not only performed surgery on her without her consent, but in the face of her expressed lack of consent. Id.; see also FURROW ET AL., supra note 5, at 232 (describing “the first period [of informed consent], up to the mid-twentieth century,” as courts’ building “upon the law of battery”).

8 FURROW ET AL., supra note 5, at 232.

9 464 F.2d 772 (D.C. Cir. 1972).

10 Id. at 780.

11 The scope of information that must be disclosed depends on the standard of informed consent. A “slight majority” of courts require physicians to disclose what a reasonable physician would disclose—the professional standard—and the remaining jurisdictions require a physician to disclose information that would be material to a reasonable patient—the patient-based standard. FURROW ET AL., supra note 5, at 240; see also King, Jaime Staples & Moulton, Benjamin W., Rethinking Informed Consent: The Case for Shared Medical Decision-Making, 32 AM. J.L. & MED. 429, 430 (2006)Google Scholar PubMed.

12 Today, the vast majority of informed consent claims sound in negligence as opposed to battery. FURROW ET AL., supra note 5, at 232.

13 Canterbury, 464 F.2d at 781.

14 FURROW ET AL., supra note 5, at 231.

15 Id. Attitudes about deception have evolved over time. At the beginning of the 1960s, “almost all physicians (90 percent in one study) reported that their ‘usual policy’ was not to tell patients about a finding of cancer. By the close of the 1970s, an equal percentage reported that they usually did tell patients such a diagnosis.” DAVID J. ROTHMAN, STRANGERS AT THE BEDSIDE: A HISTORY OF HOW LAW AND BIOETHICS TRANSFORMED MEDICAL DECISION MAKING 147 (1991).

16 ROTHMAN, supra note 15, at 117 (“[I]n the absence of diagnostic technologies, [doctors] put a premium on knowing the patient's constitution and family history. Information on what illnesses the patient had previously experienced … were vital clues to diagnosing the patient's current ailment.”); id. at 118 (“[A] personal knowledge of the patient had a diagnostic and therapeutic importance in medicine that is almost impossible to appreciate today.”).

17 Id. at 110; see also id. at 112 (observing that the “great majority of doctor-patient encounters took place in the patient's home, not in an office or a hospital” and that this knowledge of the patient in the milieu of his home helped doctors “gain greater insight into the patient's needs” and probably made the patients “more trusting of doctors”).

18 As Oliver Wendell Holmes advised the graduating class of the Bellevue Medical School in 1871, “Your patient has no more right to all the truth you know than he has to all the medicine in your saddlebags … . He should get only just so much as is good for him … . It is a terrible thing to take away hope, every earthly hope, from a fellow creature.” Id. at 123 (quoting Oliver Wendell Holmes).

19 Id. at 127-40.

20 Id. at 109.

21 See id. at 168.

22 Id. at 107 (noting that other professions in addition to medicine were “challenged by expressions of individual rights”).

23 Id. at 4-5.

24 Id. at 5. It is not surprising that in 1972 the American Hospital Association created the Patient Bill of Rights, which described the most central concern as “patient consent.” Id. at 146.

25 See Moulton, Benjamin & King, Jaime S., Aligning Ethics with Medical Decision-Making: The Quest for Informed Patient Choice, 38 J.L. MED. & ETHICS 85, 85 (2010)Google Scholar PubMed.

26 The shocking revelations of horrific experiments by the Nazis led to the Nuremberg Code, which described, among other things, the core ethical principle that the “voluntary consent of the human subject is absolutely essential.” The Medical Case, in 2 TRIALS OF WAR CRIMINALS BEFORE THE NURENBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 181-82 (1949), available at http://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-II.pdf. Additional revelations about abuses in our own country further emphasized the importance of consent as a way to protect autonomy. In 1966, for example, Dr. Henry Beecher published an article describing twenty-two examples of risky human experimentation without the subject's consent. Beecher, Henry K., Ethics and Clinical Research, 274 NEW ENG. J. MED. 1354 (1966).Google Scholar PubMed

27 See The Medical Case, supra note 26, at 181-82.

28 See id.

29 Canterbury v. Spence, 464 F.2d 772, 781 (D.C. Cir. 1972).

30 Id. at 780 n.15.

31 Id.

32 The reasonable-patient standard aims to acknowledge that the scope of disclosure should be “measured by the patient's need,” as opposed to physician's beliefs, because “the patient's right of self-decision shapes the boundaries of the duty to reveal.” Id. at 786. In other words, it aims to achieve a compromise between defining the scope of information to be disclosed by patient needs and defining the scope of information by a purely objective and predictable standard.

33 See supra note 11.

34 Canterbury, 464 F.2d at 791. A minority of jurisdictions use a subjective test to establish causation. Evelyn M. Tenenbaum. Revitalizing Informed Consent and Protecting Patient Autonomy: An Appeal to Abandon Objective Causation, 64 OKLA. L. REV. 697, 697-98 (2012) (criticizing the majority approach for “undermin[ing] the purposes of informed consent” and noting that “[i]n all but four states, a patient cannot prevail on an informed consent claim without proving objective causation”).

35 See generally FURROW ET AL., supra note 5, at 277.

36 Id. at 277-78.

37 Arato v. Avedon, 858 P.2d 598, 607 (Cal. 1993).

38 Id. at 603 n.3.

39 Id. at 604.

40 Thus, for example, the California Supreme Court, in Arato v. Avedon, rejected a claim that the physician was under an obligation to disclose the decedent's statistical life expectancy because it was allegedly material to his “business and investment affairs.” Id. at 608. Similarly, courts have generally refused to hold healthcare providers negligent for failing to disclose financial information such as eligibility for government funding, see, e.g., Mraz v. Taft, 619 N.E.2d 483 (Ohio Ct. App. 1993), or financial arrangements for a physician's compensation, see, e.g., Neade v. Portes, 739 N.E.2d 496 (Ill. 2000) (rejecting a breach of fiduciary duty claim based on the physician's failure to disclose the cost-saving strategies of the managed care plan, which the plaintiff alleged influenced the physician's decision not to order additional diagnostic testing).

41 For example, the risk of scarring from a procedure implicates medical interests, but they may also have economic ramifications if the patient is a model.

42 See infra Part V.B.2.

43 FURROW ET AL., supra note 5, at 277; Gatter, Ken Marcus, Protecting Patient-Doctor Discourse: Informed Consent and Deliberative Autonomy, 78 OR. L. REV. 941, 953 (1999)Google Scholar.

44 See, e.g., Katz, Jay, Informed Consent - A Fairy Tale? - Law's Vision, 39 UNIV. PITT. L. REV. 137, 161 n.76 (1977)Google Scholar (stating that omitting material medical fact is a dignitary wrong to the patient because the patient's power of choice is reduced, even if the patient would have made the same decision or no physical harm occurred); Schultz, Marjorie M., From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 290-91 (1985)Google Scholar (discussing the benefits of recognizing at least some types of intangible interests in patient choice).

45 See, e.g., Katz, supra note 44, at 161 n.76; Schultz, supra note 44, at 290-91.

46 FURROW ET AL., supra note 5, at 239-40.

47 CARL E. SCHNEIDER, THE PRACTICE OF AUTONOMY: PATIENTS, DOCTORS AND MEDICAL DECISIONS 10 (1998) (describing a study of 312 patients in a primary care clinic who were asked to indicate their desire for making their own treatment decision in various vignettes that represented different levels of illness severity) On a scale of 0 to 100, the mean score for wanting to make their own treatment decision was 33.2. Id.

48 See id., at 11-32.

49 See Ben-Shahar & Schneider, supra note 3, at 698-702.

50 See id. (noting the many reasons healthcare providers, for example, may want to avoid disclosing information to patients).

51 SCHNEIDER, supra note 47, at 35.

52 Id. at 48-75. Medical decision making is hard, and for various reasons, patients can have difficulty making sense of the information: it is complex, Ben-Shahar & Schneider, supra note 3, at 716-18, many patients face illiteracy and innumeracy challenges, id. at 711-16, patients often lack relevant expertise, id. at 725-27, and they have difficulty remembering the information, id. at 719.

53 SCHNEIDER, supra note 47, at 75-87.

54 Id. at 87-92. In addition, he suggests, patients may not actually be as rational and objective in their decision making as proponents of autonomy might believe. Id. at 92.

55 See id. at 683 (noting more broadly that informed consent does not consider “whether patients want to make medical decisions, whether doctors could provide and patients could use the mandated information, whether patients would make better decisions with more information, or what informed consent would cost”).

56 Brody, David S. et al., Patient Perception of Involvement in Medical Care: Relationship to Illness, Attitudes, and Outcomes, 4 J. GEN. INTERNAL MED. 506, 510-11 (1989)Google Scholar.

57 See infra Part VI.

58 I should note that this Part focuses on how the relational autonomy interests at stake are a significant justification for legal intervention. Part IV addresses the primary rationales legislators offer for informed consent laws in these contexts, namely the concerns about structural barriers to patients’ obtaining relevant information.

59 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).

60 497 U.S. 261 (1990).

61 Id. at 302-03 (Brennan, J., dissenting).

62 Id. at 343 (Stevens, J., dissenting).

63 Id. at 344 (Stevens J., dissenting) (noting that life is often thought of as “the experiences that comprise a person's history” and that “appreciation of mortality [is] essential to understanding life's significance”); see also Washington v. Glucksberg, 521 U.S. 702, 745 (1997) (Stevens, J., concurring) (describing the liberty interest one has “in making decisions about how to confront an imminent death”).

64 Laufer-Ukeles, Pamela, Reproductive Choices and Informed Consent: Fetal Interests, Women's Identity, and Relational Autonomy, 37 AM. J.L. & MED. 567, 604 (2011)Google Scholar.

65 Suter, Sonia M., The “Repugnance” Lens of Gonzalez v. Carhart and Other Theories of Reproductive Rights: Evaluating Advanced Reproductive Technologies, 76 GEO. WASH. L. REV. 1514, 1592-93 (2008)Google Scholar [hereinafter Suter, Repugnance] (quoting Suter, Sonia M., Disentangling Privacy from Property: Toward a Deeper Understanding of Genetic Privacy, 72 GEO. WASH. L. REV. 737, 772 (2004)Google Scholar [hereinafter Suter, Disentangling Privacy]) (internal citation marks omitted).

66 Suter, Repugnance, supra note 65, at 1593.

67 Of course, as I have noted in other pieces, some might argue that relational autonomy might justify the state's interests in legislating to protect fetal life. See Suter, Repugnance, supra note 65, at 1594-95. Nevertheless, as I argue, depending on the nature of the state action, there is something problematic about “privileging potential relationships over existing relationships,” which undermines a relational autonomy defense of state action that too heavily intrudes on reproductive decision making. Id. at 1596-97.

68 “Abortion is one of the few medical procedures governed by specific statutory informed consent requirements.” Rebecca Dresser, From Double Standard to Double Bind: Informed Choice in Abortion Law, 76 GEO. WASH. L. REV. 1599, 1602 (2008); see also supra note 3.

69 See, e.g., Ben Mattlin, The Peril of California's “End of Life” Act, L.A. TIMES (Oct. 19, 2008), http://www.latimes.com/news/opinion/commentary/la-oe-mattlin19-2008oct19,0,2741202.story.

70 See infra Part IV.A.1.

71 Dresser, supra note 68, at 1609 (“After Casey affirmed that states could require physicians to supply pregnant women with material designed to discourage abortion as a means of ensuring that women's choices were ‘matured and informed,’ state legislatures moved to do just that.”).

72 Planned Parenthood of Se. Pa. v Casey, 505 U.S. 833, 846 (1992) (noting that the essential holding had three parts, which it described as: (1) “the right of a woman to choose to have an abortion before viability … without undue burden by the state,” (2) recognition of the “State's power to restrict abortion after fetal viability, if the law contains exceptions for pregnancies which may endanger a woman's life or health,” and (3) recognition that the “state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus”).

73 Id. at 873.

74 Dresser, supra note 68, at 1605.

75 Id. at 1607-08.

76 Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 67 (1976) (emphasis added).

77 Id. at 85.

78 462 U.S. 416 (1982).

79 Id. at 443 (quoting Belotti v. Baird, 443 U.S. 622, 649 (1979)).

80 Id. at 443-44.

81 Id. at 446.

82 Id. at 445.

83 Id. at 444-45.

84 476 U.S. 747 (1986).

85 “For a patient with a life-threatening pregnancy, the ‘information’ in its very rendition may be cruel as well as destructive of the physician-patient relationship.” Id. at 763. The Court found that these provisions deviated from traditional informed consent requirements for ordinary medical treatment and noted that the state “does not, and surely would not, compel similar disclosure of every possible peril of necessary surgery or of simple vaccination.” Id. at 764.

86 462 U.S. at 445 (“By insisting upon recitation of a lengthy and inflexible list of information, Akron unreasonably has placed ‘obstacles in the path of the doctor upon whom [the woman is] entitled to rely for advice in connection with her decision.’” (citing Whalen v. Roe, 429 U.S. 589, 604, n.33 (1977)). The Court wanted to avoid “placing the physician in … an ‘undesired and uncomfortable straitjacket.’” Id. (quoting Danforth, 428 U.S. at 67 n.8).

87 Thornburgh, 476 U.S. at 762 (“‘It remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances. Danforth's recognition of the State's interest in ensuring that this information be given will not justify abortion regulations designed to influence the woman's informed choice between abortion or childbirth.’” (citing Akron, 462 U.S. at 443-44)).

88 Dresser, supra note 68, at 1606-07. In addition, the Supreme Court “limited the states’ ability to deviate from the traditional doctrine of informed consent in mandatory disclosure laws governing abortion.” Id.

89 Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1021 (1st Cir. 1981).

90 Thornburgh, 476 U.S. at 762.

91 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 882 (1992).

92 Id. at 883.

93 Id.

94 Id. at 883 (emphasis added).

95 Id.

96 See id. at 884 (“Thus, a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion is, for constitutional purposes, no different from a requirement that a doctor give certain specific information about any medical procedure.”).

97 550 U.S. 124 (2008).

98 See Manian, Maya, The Irrational Woman: Informed Consent and Abortion Decision-Making, 16 DUKE J. GENDER L. & POL’Y 223, 225 (2009)Google Scholar; Siegel, Reva B., The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. 1641 (2008)Google Scholar PubMed.

99 See Gonzales, 550 U.S. 124.

100 Id. at 159.

101 Id.

102 Id.

103 Suter, Repugnance, supra note 65, at 1578.

104 Dresser, supra note 68, at 1617.

105 Id at 1609.; see also Blumenthal, Jeremy, Abortion, Persuasion, and Emotion: Implications of Social Science Research on Emotion for Reading Casey, 83 WASH. L. REV. 1, 7 (2008)Google Scholar.

106 Gold, Rachel Benson & Nash, Elizabeth, State Abortion Counseling Policies and the Fundamental Principles of Informed Consent, 10 GUTTMACHER POL’Y REV. 6, 7 (2007)Google Scholar. Often physicians must disclose the information, although in some instances, physicians must only provide patients with written materials developed by the state health agency, from which physicians may dissociate themselves. Id. at 8.

107 State Policies in Brief: Counseling and Waiting Periods for Abortion, GUTTMACHER INST., http://www.guttmacher.org/statecenter/spibs/spib_MWPA.pdf (last updated Dec. 1, 2012) [hereinafter Counseling, GUTTMACHER]; see also Blumenthal, supra note 105, at 7. In contrast, eight states have “customary” informed consent procedures, Counseling, GUTTMACHER, supra, i.e., laws that are consistent with common law informed consent requirements.

108 Woman's Ultrasound Right to Know Act, No. 207, § 2, 2007 Ga. Laws 299, 300 (codified as amended at GA. CODE ANN. § 31-9A (2007)).

109 Id. § 2(a)(2) (quoting Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 67 (1976)); see also supra text accompanying notes 76-77.

110 ALA. CODE § 26-23A-2(a)(3) (2012).

111 Id. § 26-23A-2(a)(1).

112 Id. § 26-23A-2(a)(2); see also WIS. STAT. ANN. § 253.10(1)(a)(5) (West 2012).

113 WIS. STAT. ANN. § 253.10(1)(a)(1).

114 ALA. CODE § 26-23A-2(b). Of course, many statutes also acknowledge the goal of protecting potential life. Woman's Ultrasound Right to Know Act, No. 207, § 2(a)(3) (explaining that the statute is intended, in part, to “[p]rotect unborn children from a woman's uninformed decision to have an abortion”).

115 Gold & Nash, supra note 106, at 7.

116 TEX. DEP't OF HEALTH, A WOMAN's RIGHT TO KNOW 10 (2003), available at http://www.dshs.state.tx.us/wrtk/pdf/booklet.pdf; Sawicki, Nadia N., The Abortion Informed Consent Debate: More Light, Less Heat, 21 CORNELL J.L. & PUB. POL’Y 1, 23–25 (2011)Google Scholar.

117 Sawicki, supra note 116, at 24.

118 See id. at 24-25.

119 See infra Part V.A.2.

120 Counseling, GUTTMACHER, supra note 107.

121 See Sawicki, supra note 116, at 24-25.

122 MO. ANN. STAT. §§ 188.010-188.335 (West 2011).

123 Counseling, GUTTMACHER, supra note 107 (showing that Kansas, Michigan, Nebraska, North Carolina, South Dakota, Texas, Utah, and West Virginia are the states that require disclosure of only the negative possible emotional responses to abortions).

124 S.D. CODIFIED LAWS § 34-23A-10.1(1)(e) (requiring a physician seeking to perform an abortion to present to the patient a statement in writing that describes “all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including: (i) Depression and related psychological distress; and (ii) Increased risk of suicide ideation and suicide”). The Eighth Circuit upheld this provision as “non-misleading and relevant to the patient's decision to have an abortion. Planned Parenthood Minn., S.D., N.D. v. Rounds, 686 F. 3d 889, 905 (8th Cir. 2012). Although the court conceded that the data did not establish a causal connection between abortion and suicide, the court rejected assertions by Planned Parenthood and the dissent that the language of the statute, “conveys a causal relationship between abortion and the risk of suicide ‘to which the pregnant woman would be subjected.’” Id. at 908 (Murphy, J., dissenting) (quoting the South Dakota law). The court reasoned that “it is a typical medical practice to inform patients of statistically significant risks that have been associated with a procedure through medical research, even if causation has not been proved definitively.” Id. at 905. Noting that “the record reflects ‘medical and scientific uncertainty,’ … as to whether abortion itself is a causal factor in the observed correlation between abortion and suicide, there is nothing in the record to suggest that abortion as a cause per se has been ruled out with certainty.” Id. at 904 (quoting Gonzales v. Carhart, 550 U.S. 124, 163 (2007)). Moreover, the court noted, “the Supreme Court ‘has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty,’ including ‘in the abortion context.’” Id. at 905-06 (quoting Gonzales, 550 U.S. at 163-64). Finally, the court suggested that physicians “should be capable of reviewing the research in the field, understanding the difference between relative risk and proof of causation, and explaining it correctly to their patients,” id. at 904-05, which the dissent viewed as a “judicial attempt to direct the content of the conversation between a patient and her doctor [that cannot] remedy the advisory's constitutional shortcomings.” Id. at 912 (Murphy, J., dissenting).

125 Dresser, supra note 68, at 1609-10.

126 Counseling, GUTTMACHER, supra note 107 (showing that Alaska, Kansas, Mississippi, Oklahoma, and Texas are the states that require disclosure of inaccurate assertions about a possible link between abortion and increased risk of breast cancer); see also Reardon, David C., Abortion Decisions and the Duty to Screen: Clinical, Ethical, and Legal Implications of Predictive Risk Factors of Post-Abortion Maladjustment, 20 J. CONTEMP. HEALTH L. & POL’Y 33, 76–77 (2003)Google Scholar PubMed.

127 Counseling, GUTTMACHER, supra note 107 (showing that Arizona, Kansas, North Carolina, South Dakota, Texas, and West Virginia are the states that require disclosure of inaccurate portrayals of fertility risks).

128 Renfer, Susan et al., The Woman's Right to Know: A Model Approach to the Informed Consent of Abortion, 22 LOY. U. CHI. L.J. 409, 423-26 (1991)Google Scholar.

129 Dresser, supra note 68, at 1609.

130 Gold & Nash, supra note 106, at 9 tbl.

131 Most of the time, this information is included in printed materials and internet information published by the state health department. Many states simply notify the woman that she may receive such printed materials upon request and/or provide the website address where the woman can find additional information.

132 The Woman's Right to Know Act, No. 2002-419, § 4(a), 2002 Ala. Laws 1074, 1076; ARIZ. REV. STAT. ANN. § 36-2153(2)(f)-(g) (2012); IND. CODE ANN. § 16-34-2-1.1(a)(2)(C) (West 2012); KAN. STAT. ANN. § 65-6709(b)(2) (2011); LA. REV. STAT. ANN. § 40:1299.35.6(B)(4)(b)(ii) (2012); MO. ANN. STAT. § 188.027(1)(6)(a) (West 2011); NEB. REV. STAT. § 28-327(2)(d) (2010); N.C. GEN. STAT. ANN. § 90-21.82(2)(d) (West 2011); S.C. CODE ANN. § 44-41-330(A)(2), (C)-(D) (2002).

133 TEX. HEALTH & SAFETY CODE ANN. § 171.0122(a) (West 2010).

134 Pam Belluck, Pregnancy Centers Gain Influence in Anti-Abortion Arena, N.Y. TIMES, Jan. 4, 2013, http://www.nytimes.com/2013/01/05/health/pregnancy-centers-gain-influence-in-anti-abortion-fight.html (noting that thirteen states provide some direct financing). A South Dakota statute that “requires pregnancy center visits before abortions” is being challenged by Planned Parenthood. Id.

135 Id.

136 Id.

137 Id.

138 Thirty-three states require disclosure of this information as part of the mandatory materials. Counseling, GUTTMACHER, supra note 107.

139 See, e.g., KY. REV. STAT. ANN. § 311.725 (West 2012); MICH. COMP. LAWS ANN. § 333.17015 (2012); MO. REV. STAT. § 188.027 (2011); UTAH CODE ANN. § 76-7-305.5 (West 2012); see also Sawicki, supra note 116, at 7.

140 Dresser, supra note 68, at 1610 (citing UTAH CODE ANN. § 76-7.305.5(1)(b) (2003 & Supp. 2007)); Blumenthal, supra note 105, at 7.

141 Counseling, GUTTMACHER, supra note 107 (showing that Alaska, Arkansas, Georgia, Louisiana, Minnesota, Oklahoma, South Dakota, and Texas are the states that require disclosure of information on ability of the fetus to feel pain).

142 A study that reviewed and synthesized research on fetal pain, anesthesia, and analgesia concluded that the sensory system necessary to feel pain develops between twenty-three and thirty weeks’ gestation. Lee, Susan et al., Fetal Pain: A Systematic Multidisciplinary Review of the Evidence, 294 JAMA 947 (2005)Google Scholar. The article notes, however, that in order for the fetus to perceive pain, the fetus must also be able to interpret the sensory information. Id. The limited data suggest that this is unlikely to occur until twenty-nine-weeks gestation or later. Id. This informed consent provision is consistent with “fetal pain” restrictions on abortion. See Christopher Quinn & Kristina Torres, Georgia Lawmakers Pass Abortion Bill on Last, Emotional Day, ATLANTA J. CONST. (Mar. 29, 2012), http://www.ajc.com/news/news/state-regional-govt-politics/georgia-lawmakers-pass-abortion-bill-on-last-emoti/nQSfD/ (describing Georgia's “‘fetal pain’” restrictions, which are similar to those in six other states—Nebraska, Idaho, Indiana, Kansas, Oklahoma, and Alabama). Georgia's law tightens “medical exemptions for terminating pregnancies and require[s] any abortion performed after 20 weeks of pregnancy be done in a way to bring the fetus out alive.” Id. There is no rape or incest exemption. Id. A Georgia Superior Court temporarily suspended the law because it would prohibit some previability pregnancies. State Court Temporarily Halts Georgia Abortion Ban, ACLU OF GA. (Dec. 26, 2012), http://www.acluga.org/news/2012/12/26/state-court-temporarily-halts-georgia-abortion-ban. “North Carolina … restricts abortion at 20 weeks.” Quinn & Torres, supra.

143 Sawicki, supra note 116, at 7.

144 Id. at 7-8.

145 State Policies in Brief: Requirements for Ultrasound, GUTTMACHER INST., http://www.guttmacher.org/statecenter/spibs/spib_RFU.pdf (last updated Dec. 1, 2012) [hereinafter US, GUTTMACHER] (showing that Alabama, Arizona, Florida, Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, Texas, and Virginia require the physician to actually perform an ultrasound for each abortion).

146 N.C. GEN. STAT. § 90-21.85 (2011); OKLA. STAT. 63, § 1-738.3d (2012); TEX. HEALTH & SAFETY CODE ANN. § 171.012 (West 2012); see also Erik Eckholm, Ultrasound: A Pawn in the Abortion Wars, N.Y. TIMES (Feb. 25, 2012), http://www.nytimes.com/2012/02/26/sunday-review/ultrasound-a-pawn-in-the-abortion-wars.html?pagewanted=all&_r=0.

147 N.C. GEN. STAT. § 90-21.85; OKLA. STAT. 63, § 1-738.3d; TEX. HEALTH & SAFETY CODE ANN. § 171.012; see also Terry Baynes, U.S. Judge Allows Enforcement of Texas Abortion Law, REUTERS, Feb. 7, 2012, available at http://www.reuters.com/article/2012/02/07/us-texas-abortion-idUSTRE81605220120207.

148 Eckholm, supra note 146. This aspect of the mandatory ultrasound laws only recently came to the attention of the public and media in debates over a Virginia bill, the original version of which required detailed imaging of the fetus and effectively mandated transvaginal ultrasounds for most women seeking abortions. See, e.g., Dahlia Lithwick, Virginia's Proposed Ultrasound Law Is an Abomination, SLATE (Feb. 16, 2012), http://www.slate.com/articles/double_x/doublex/2012/02/virginia_ultrasound_law_women_who_want_an_abortion_will_be_forcibly_penetrated_for_no_medical_reason.html. Because the public outcry was so great, and the implications of the proposed legislation were made so vivid on programs like The Daily Show and Saturday Night Live, Governor McDonnell urged a revision that would allow women to opt out of having a transvaginal ultrasound. See Jennifer Preston, Virginia Lawmakers Vote on Modified Ultrasound Bill, N.Y. TIMES (Feb. 22, 2012), http://thelede.blogs.nytimes.com/2012/02/22/virginia-legislature-expected-to-debate-ultrasound-bill/?scp=6&sq=ultrasound%20virginia%20abortion&st=cse.

149 Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012); Baynes, supra note 147.

150 Baynes, supra note 147.

151 Laura Basset, Oklahoma Mandatory Ultrasound Is Ruled Unconstitutional, HUFFINGTON POST (Mar. 28, 2012), http://www.huffingtonpost.com/2012/03/28/oklahoma-mandatory-ultrasound-law-unconstitutional_n_1386372.html (noting that “Idaho lawmakers dropped their version of the bill … because it was so heavily embroiled in controversy”).

152 S.D. CODIFIED LAWS § 34-23A-10.1(1)(b)-(c) (2012). Challenges to the constitutionality of this provision have led to multiple opinions, including the most recent ruling, Planned Parenthood Minn. v. Rounds, 653 F.3d 662 (8th Cir. 2011), rev’d in part, Planned Parenthood Minn., N.D., S.D. v. Rounds, 662 F.3d 1072 (8th Cir. 2011) (reversing the grant of summary judgment to the abortion provider and granting summary judgment to the State regarding the informed consent provision that required disclosure about suicide risks), in which the Eighth Circuit upheld the requirements as not being an undue burden.

153 See, e.g., The Woman's Right to Know Act, No. 2002-419, § 9(a), 2002 Ala. Laws 1074, 1080 (designating the first offense as a Class B misdemeanor, second offense as a Class A misdemeanor, and a third or subsequent offense as a Class C felony); IND. CODE ANN. § 16-34-2-7(c) (West 2012) (designating performing abortion without informed consent as a Class A infraction); LA. REV. STAT. ANN. §§ 40:1299.35.6(H), .35.19 (2012) (subjecting physicians to fines of no more than $1000 and/or imprisonment of no more than two years); MISS. CODE ANN. § 41-41-39 (West 2007) (stating that performing abortion purposefully, knowingly, or recklessly in violation of the statutory requirements is punishable with a fine of $1000 and/or imprisonment of no more than six months); MO. ANN. STAT. § 188.075 (West 2012) (designating a violation of abortion requirements with knowledge of such violation as a Class A misdemeanor and allowing an affirmative defense of medical emergency); MONT. CODE ANN. § 50-20-106(8) (2011) (designating a violation of the informed consent requirements as a misdemeanor); N.D. CENT. CODE § 14-02.1-11 (2009) (designating a violation of the abortion requirements as a Class A misdemeanor); 63 OKLA. STAT. tit. 65, § 1-738.5(D) (2012) (stating that “any physician who knowingly or recklessly” violates the informed consent provisions is guilty of a felony); S.C. CODE ANN. § 44-41-350 (2011) (explaining that when the physician “knows or should know that the[informed consent] provisions … have not been complied with before the abortion is guilty of a misdemeanor” and may be fined more than $1000 for a first or second offense, and “must be imprisoned not more than three years or fined not more than five thousand dollars, or both” for the third or subsequent offenses); S.D. CODIFIED LAWS § 34-23A-10.2 (2011) (violating the informed consent statute “knowingly or in reckless disregard” is a Class 2 misdemeanor); TEX. HEALTH & SAFETY CODE ANN. § 171.018 (West 2012) (deeming intentional violations of the informed consent provisions to be “a misdemeanor punishable by a fine not to exceed $10,000”); WIS. STAT. § 253.10(5) (2011) (“Any person who violates [the informed consent requirements] shall be required to forfeit not less than $1,000 nor more than $10,000.”).

154 See, e.g., ARK. CODE ANN. § 20-16-1110 (2005) (allowing for actual and punitive damages, unless the materials were not available to the physician at the time the woman was to be informed); ARIZ. REV. STAT. ANN. § 36-2153(K) (2012) (allowing for monetary damages for emotional and physical injuries, statutory damages equal to $5000 or three times the cost of the abortion, “whichever is greater,” and reasonable attorneys fees); LA. REV. STAT. ANN. § 40:1299.35.6(D)(3) (stating that a physician who performs an abortion without informed consent may be liable in a civil action); MINN. STAT. ANN. § 145.4247 (2011) (providing that a woman may maintain a civil action against a physician who knowingly or recklessly violated informed consent requirements, although no civil liability may be assessed if the printed materials were not available to the physician when the woman was to be informed); NEB. REV. STAT. § 28-327.07(2) (2010) (allowing for wrongful death actions if the physician “knew or should have known that the pregnant woman's consent was either not fully informed or not fully voluntary”); N.C. GEN. STAT. § 90-21.88 (2011) (allowing for civil remedies); N.D. CENT. CODE § 14-02.1-03.2 (2009) (allowing punitive damages of $10,000 and treble actual damages for abortions “performed without informed consent”); VA. CODE ANN. § 18.2-76(E) (West 2012) (Physicians who fail “to comply with the [informed consent] provisions of this section shall be subject to a $2,500 civil penalty.”); WIS. STAT. § 253.10(6) (2011) (“A person who violates [the informed consent provisions] is liable to the woman on or for whom the abortion was performed or induced for damages arising out of the performance or inducement of the abortion, including damages for personal injury and emotional and psychological distress.”).

155 See, e.g., ARK. CODE ANN. § 20-16-1109(a) (2005); ARIZ. REV. STAT. ANN. § 36-2153(I) (2012) (subject to license suspension); GA. CODE ANN. § 31-9A-6.1(a) (2012) (stating that a failure to comply with the informed consent requirements will be “reported to the Georgia Composite Medical Board for disciplinary action”); KY. REV. STAT. ANN. § 311.725(6) (LexisNexis 2011) (subjecting physicians who perform abortions without informed consent to disciplinary action); 63 OKLA. STAT. tit. 63, §1-738.5 (2012) (subjecting physicians “who knowingly or recklessly perform[] or attempt[] to perform an abortion” in violation of the informed consent requirements to “disciplinary action by the State Board of Medical Licensure and Supervision or the State Board of Osteopathic Examiners”); cf. KAN. STAT. ANN. § 65-6712 (2002) (describing the failure to provide informed consent as “unprofessional conduct”); 63 OKLA. STAT. tit. 65, § 1-738.5(A) (2012) (subjecting physicians to disciplinary action for “knowingly or recklessly” violating the informed consent provisions); 18 PA. CONS. STAT. § 3205(c) (2012) (stating that any physician who violates the provisions of this section is guilty of “unprofessional conduct” and his license for the practice of medicine and surgery shall be subject to suspension or revocation); UTAH CODE ANN. § 76-7-305(7)(b)(i) (b) (West 2012) (subjecting violators of the statute to “suspension or revocation of the physician's license for the practice of medicine and surgery” and “administrative penalties”); W. VA. CODE § 16-2I-8 (2011) (“Any physician or agent thereof who willfully violates the provisions of this article may be subject to sanctions as levied by the licensing board governing his or her profession.”).

156 See, e.g., Dresser, supra note 68, at 1609.

157 See infra note 177 (describing the possibility of imprisonment in some jurisdictions). These statutory penalties exist against the backdrop of a rise in medical malpractice litigation over allegedly inadequate informed consent procedures, which pro-life activists have increasingly used to promote their cause. Acuna v. Turkish is an example of such a case where a woman argued that her physician failed to inform her that: (1) her unborn child was a “complete, separate, unique, and irreplaceable being”; (2) there was a potential risk that the fetus could experience pain; (3) “abortion involved ‘actually killing an existing human being’”; (4) “she would be at risk for ‘post-abortion syndrome’”; and (5) “she would come to realize that she ‘was responsible for killing her own child.’” Acuna v. Turkish, 930 A.2d 416, 420 (N.J. 2007); see also Eidmann, Kathryn A., Acuna and the Abortion Right: Constraints on Informed Consent Litigation, 20 COLUM. J. GENDER & L. 262, 262-63 (2011)Google Scholar.

158 Many of the laws recognize that in some cases, the patients will be too sick or perhaps not fully competent to be able to participate in this decision making and thus the laws direct the information to those legally authorized to make decisions on the patient's behalf. See infra text accompanying notes 173.

159 MICH. COMP. LAWS ANN. § 333.5652(1)(c) (West 2012).

160 THOMAS DUANE, SPONSOR MEMO, S.B. 4498, Reg. Sess. (N.Y. 2009).

161 End-of-Life Care: Patient Information: Hearing on AB 2747 as Amended April 24, 2008 Before the Assemb. Comm. on Judiciary, 2008 Leg. (Cal. 2008), available at ftp://leginfo.public.ca.gov/pub/07-08/bill/asm/ab_2701-2750/ab_2747_cfa_20080428_103020_asm_comm.html; see also Barbara Coombs Lee, End-of-Life Bill Empowers Sick Patients, L.A. TIMES (Oct. 29, 2008), http://www.latimes.com/news/opinion/la-oew-lee29-2008oct29,0,4946192.story (“Not knowing what [end-of-life treatment options there] are makes it impossible for dying patients to choose them … . The basis of informed patient consent … puts the information and the power to choose in patients’ hands. It shifts power from a condescending, top-down, ‘doctor knows best’ approach to a patient-doctor conversation. Ultimately, this will lead to patients’ ability to work with their doctors to determine the best care option that fits with their values.”). Compassion & Choices, an advocacy group for terminally ill persons, recently submitted a proposal to the Uniform Law Commission (ULC) urging the adoption of a uniform law directing healthcare providers to offer terminally ill patients counseling on all legally available end-of-life care options because of “the failure of many physicians to discuss end-of-life care issues with their patients, and to ensure that terminally ill patients are fully informed about their treatment choices.” Kathryn L. Tucker, Comprehensive End of Life Counseling: Time for a Uniform Law Governing Comprehensive End of Life Counseling, AM. PUB. HEALTH ASS’N, http://www.apha.org/membergroups/newsletters/sectionnewsletters/aph/winter11/Legislative+Update.htm (“Studies have confirmed that: (i) these conversations between health care providers and their patients often do not take place; and (ii) when these conversations do occur, they result in significant benefits for the patient and the patient's caregivers”) (last visited Feb. 3, 2013).

162 MICH. COMP. LAWS ANN. § 333.5652(1)(d) (West 2012).

163 Id. §§ 333.5651-.5661.

164 CAL. HEALTH & SAFETY CODE §§ 442, 442.5, 442.7 (West 2012).

165 VT. STAT. ANN. tit. 18, § 1871 (2012).

166 N.Y. PUB. HEALTH LAW § 2997-c (McKinney 2012); 2010 N.Y. Sess. Laws 1082 (McKinney).

167 N.Y. PUB. HEALTH LAW § 2997-d.

168 CAL. HEALTH & SAFETY CODE § 442.5; N.Y. PUB. HEALTH LAW § 2997-c; 2010 N.Y. Sess. Laws 1082; S.B. 1311, 49th Leg. 1st Reg. Sess. § 32-3242(A) (Ariz. 2009); S.B. 546 2009 Reg. Sess. § 5-902(A) (Md. 2009).

169 MICH. COMP. LAWS ANN. § 333.5654(1) (West 2012).

170 N.Y. PUB. HEALTH LAW § 2997-d(2). This statute also expanded the Palliative Care Information Act in applying the disclosure requirements not only to physicians and nurse practitioners, but also to hospitals, nursing homes, and home care agencies. Id. § 2997-d(3). In addition, the statute requires healthcare providers and residences to “facilitate access to appropriate palliative care consultations and services” rather than merely offer information and counseling. Id.

171 VT. STAT. ANN. tit. 18, § 1871(a) (2012).

172 Id. § 1871(b).

173 CAL. HEALTH & SAFETY CODE § 442.5(a)(6); MICH. COMP. LAWS ANN. § 333.5654(1)(a)-(b); N.Y. PUB. HEALTH LAW § 2997-c(2); Ariz. S.B. 1311 § 32-3242(B)(6); Md. S.B. 546 § 5-902(A).

174 CAL. HEALTH & SAFETY CODE § 442.5 (emphasis added); see also Ariz. S.B. 1311 § 32-3242(A). If the patient's healthcare provider is not available, the patient can be referred to “a hospice provider or private or public agencies and community-based organizations that specialize in end-of-life care case management and consultation to receive comprehensive information and counseling regarding legal end-of-life care options.” CAL. HEALTH & SAFETY CODE § 442.5; see also Ariz. S.B. 1311 § 32-3242(A). Earlier versions of the California law were similar to Oregon's Death with Dignity Act, which allows terminally ill patients to hasten their deaths with medical authorization, and were easily defeated. Commentators speculate that criticism from conservative religious groups about the legislation's “undue influence” with respect to end-of-life decisions motivated the legislatures to require that “patients, not doctors, must initiate end-of-life dialogues.” Stern, Ruth C. & Herbie Difonzo, J., Stopping for Death: Re-Framing Our Perspective on the End of Life, 20 U. FLA. J.L. & PUB. POL’Y 387, 435 (2009)Google Scholar; see also Lee, supra note 161 (“While the act enables patients to request this information from their doctors, it does not instruct any caregiver to initiate this discussion.”).

175 N.Y. PUB. HEALTH LAW § 2997-c (stating that the physician “shall offer to provide the patient [or the person authorized to make healthcare decisions for the patient] with information and counseling regarding palliative care and end-of-life options appropriate to the patient”) (emphasis added); MICH. COMP. LAWS ANN. § 333.5654(1)(a)-(b); Md. S.B. 546 § 5-902(A).

176 VT. STAT. ANN. tit. 18, § 1871(a).

177 See Questions and Answers About Palliative Care, Hospice, and the Palliative Care Information Act, N.Y. STATE DEP't OF HEALTH (Feb. 2011), http://www.health.ny.gov/professionals/patients/patient_rights/palliative_care/practitioners/questions_and_answers.htm (responding to questions about what penalties are imposed for failing to comply with the statute: “Violations of the Public Health Law are punishable by a civil penalty of up to $2,000. This penalty may be increased to up to $5,000 for repeat violations within 12 months that were a serious threat to health and safety of the individual or individuals involved. A willful violation of the Public Health Law is punishable by a term of imprisonment of up to 1 year and/or a fine of up to $10,000.”) Although the statute does not itself describe penalties, given that the statute is codified in the Public Health code the penalties seem to apply.

178 MICH. COMP. LAWS ANN. § 333.5654(1)(a)-(b); see also CAL. HEALTH & SAFETY CODE § 442.5; N.Y. PUB. HEALTH LAW § 2997-c(2); VT. STAT. ANN. tit. 18, § 1871(b); Ariz. S.B. 1311 § 32-3242(B); Md. S.B. 546 § 5-902(C).

179 MICH. COMP. LAWS ANN. § 333.5652(2).

180 Id. § 333.5654(2).

181 CAL. HEALTH & SAFETY CODE § 442.5; N.Y. PUB. HEALTH LAW § 2997-c(2) (including in the list of important information “the range of options appropriate to the patient” and “the prognosis, risks, and benefits of the various options”). Both the Arizona and Maryland bills describe a non-exclusive range of information to disclose, including information about hospice care, the patient's prognosis with or without treatment, and the patient's legal rights surrounding end-of-life care, including palliative care. Ariz. S.B. 1311 § 32-3242(B); Md. S.B. 546 § 5-902(C).

182 CAL. HEALTH & SAFETY CODE § 442.5; N.Y. PUB. HEALTH LAW § 2997-c(2) (including information about “the patient's legal rights to comprehensive pain and symptom management at the end of life”). Ariz. S.B. 1311 § 32-3242(B); Md. S.B. 546 § 5-902(C). Maryland's bill adds the additional statement that patients would have the right to make an advance directive or to request a “do not resuscitate order.” Md. S.B. 546 § 5-902(C)(2)(IV)-(V).

183 CAL. HEALTH & SAFETY CODE § 442.5(d).

184 SENATE STANDING COMM. ON HEALTH & ASSEMBLY COMM. ON HEALTH, RE: S. 4498 (DUANE)/A.7617(GOTTFRIED) (N.Y. 2010).

185 Md. S.B. 546 § 5-902(D). The bill also contemplated the counseling occurring, not just in one session, but “over a series of meetings … based on the patient's needs.” Id. § 5-902(F)(1). In addition, it allowed healthcare providers to “encourage the patient or proxy to include the patient's relatives and friends in end-of-life care counseling.” Id. § 5-902(F)(2).

186 N.Y. PUB. HEALTH LAW § 2997-c(3) (offering a conscience clause for healthcare practitioners who are “not willing to provide the patient with information and counseling under this section” and requiring that the provider “shall arrange for another physician or nurse practitioner to do so, or shall refer or transfer the patient to another physician or nurse practitioner willing to do so”); see also CAL. HEALTH & SAFETY CODE § 442.7; Ariz. S.B. 1311 § 32-3243; Md. S.B. 546 § 5-903.

187 See Sawicki, supra note 116, at 22 (noting that requiring physicians with “conscientious objections to certain medical procedures” to comply with the informed consent requirements is a hotly debated topic).

188 See, e.g., id. at 11 n.37.

189 This is not the only area, however, in which legislatures have promulgated specific informed consent statutes. Some states have statutes requiring disclosure of various kinds of breast cancer therapies. See Andersen-Watts, Rachel, The Failure of Breast Cancer Informed Consent Statutes, 14 MICH. J. GENDER & L. 201, 203 (2007)Google Scholar.

190 Dresser, supra note 68, at 1614 (“The law's treatment of informed consent to abortion is unusual, to say the least.”).

191 Id. at 1599.

192 Id. at 1600.

193 Id. at 1617. She goes on to point out that the decision in Gonzales v. Carhart goes even further, creating a “double bind” for women, by justifying the ban of a particular late-term abortion procedure, in part because of concerns about the psychological effects of women learning the details of the procedure and the possible regret they would experience if they find out about these details after undergoing the abortion. Id. (citing Gonzales v. Carhart, 550 U.S. 124, 159-60 (2007)); see also text accompanying notes 97-104.

194 Dresser, supra note 68, at 1617-20; Manian, supra note 98, at 225 (focusing on the reasoning of Gonzales “that competent adult women lack the capacity to determine for themselves what is best for their own health”); Siegel, supra note 98, at 1688-89; see also Gonzales, 550 U.S. at 183-84 (Ginsburg, J., dissenting).

195 See supra text accompanying notes 116-27.

196 See supra text accompanying notes 125-127, 141-42; see also Tobin, Harper J., Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws, 17 COLUM. J. GENDER & L. 111, 143-52 (2008)Google Scholar (arguing that state-mandated fetal pain information is misleading, if not inaccurate, and should be considered unconstitutional under Casey).

197 Eckholm, supra note 146.

198 A vivid example of this occurs in the movie JUNO (Fox Searchlight Pictures 2007), when the teenaged protagonist learns that her fetus now has fingernails and decides not to terminate the pregnancy. This is sometimes referred to as the “Juno” phenomenon. Woodcock, Scott, Abortion Counselling and the Informed Consent Dilemma, 25 BIOETHICS 495, 498 n.15 (2011)Google Scholar.

199 See supra text accompanying notes 89-96.

200 Dresser, supra note 68, at 1620; Woodcock, supra note 198, at 501.

201 See Eugene Basanta, W., Communicating with Dying Patients: Informed Consent, Physician First Amendment Rights, and State Regulation in the United States, 18 WORLD CONG. MED. L. 1, 3 (2010)Google Scholar (stating that some opponents of end-of-life informed consent statutes view the law as “‘a veiled attempt at assisted suicide’”); Stern & DiFonzo, supra note 174, at 435; Barbara A. Olevitch, The Post-Kevorkian Era, JEWISH PRESS (Oct. 18, 2011), http://www.jewishpressads.com/pageroute.do/50025/ (describing assisted suicide as one step beyond the palliative care options described in the law); Tom Strode, Life Digest: California Assembly OKs Backdoor Assisted Suicide Bill, ETHICS & RELIGIOUS LIBERTY COMMISSION (June 3, 2008), http://erlc.com/article/life-digest-california-assembly-oks-backdoor-assisted-suicide-bill/ (describing the California Right to Know End-of-Life Options Act as a backdoor “to legalize assisted suicide” and suggesting that support for the bill by end-of-life counseling advocacy organizations, such as Compassion and Choices, “demonstrates the legislation fits with the organization's national effort to legalize assisted suicide”).

202 Mattlin, supra note 69.

203 Letter from Teresa Favuzzi, Exec. Dir., Cal. Found. for Indep. Living Ctrs., to Patty Berg, Assembly Member, Cal. State Assembly (Aug. 5, 2008), available at http://dredf.org/assisted_suicide/CFILC_oppose_letter_8-08.pdf; see also S. HEALTH COMM., SENATE HEALTH COMMITTEE ANALYSIS ON A.B. 2747: END-OF-LIFE CARE, at 8 (Cal. 2007), available at http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab_2701-2750/ab_2747_cfa_20080625_114238_sen_comm.html.

204 Dresser, supra note 68, at 1615.

205 See, e.g., Blumenthal, supra note 105, at 7-8 (grouping information associated with medical risks separately from information about the fetus and stating that most states’ informed consent laws could be interpreted trying to discourage abortions); Sanger, Carol, Seeing and Believing: The Mandatory Ultrasound and the Protected Path to a Protected Choice, 56 UCLA L. REV. 351, 360 (2008)Google Scholar (arguing that mandatory ultrasounds improperly burden women's decisional autonomy about abortion in ways that exceed other techniques of state persuasion such as informational brochures); see also Robertson, John, Abortion and Technology: Sonograms, Fetal Pain, Viability, and Early Prenatal Diagnosis, 14 U. PA. J. CONST. L. 327, 357 (2011)Google Scholar (noting that mandated viewing and/or hearing a verbal description of a sonogram may provide relevant information but goes beyond informing women of the physical status of the fetus and instead advocates for the state's preference for childbirth).

206 See, e.g., Sawicki, supra note 116, at 32 (stating that mandatory disclosure of non-medical information “seems inconsistent with the principle of informed consent”).

207 See Letter from Marilyn Golden, Pol’y Analyst, Disability Rights Educ. & Def. Fund, to Arnold Schwarzenegger, Governor of Cal. (Sept. 4, 2008), available at http://dredf.org/assisted_suicide/DREDF%20letter%209-08%20on%20AB%202747,%20to%20Gov.pdf.

208 Id. As another disability rights group noted, because “there are relatively few organizations that have the resources to provide more balanced end-of-life information and counseling, pro-assisted suicide organizations could easily occupy the field in providing end-of-life information.” Letter from Teresa Favuzzi to Patty Berg, supra note 203.

209 Letter from Marilyn Golden to Arnold Schwarzenegger, supra note 207. While the Disability Rights Education & Defense Fund acknowledges that this information must be given only upon request of the terminally ill patient, they worry that such disclosure may be required by something as thin as a “passing” request. Id.

210 Letter from Teresa Favuzzi to Patty Berg, supra note 203.

211 Letter from Marilyn Golden to Arnold Schwarzenegger, supra note 207.

212 Blumenthal, supra note 105, at 6. “[W]hether a health message is framed positively or negatively can affect the perceived risk of not following the relevant suggestions, the perceived costs of doing so, and the persuasiveness of the message itself.” Id. at 19.

213 Id. at 20. Blumenthal notes that there is “surprisingly little empirical research on the influence of anti-abortion information on women's abortion decisions,” though he notes there is “[a]necdotal evidence” that suggests that such information can have “profound effect[s] on women seeking abortions.” Id. at 23-24.

214 See id.

215 See id. at 26.

216 Woodcock, supra note 198, at 499.

217 Id. at 498.

218 Id.

219 Mattlin, supra note 69; see also Letter from Marilyn Golden to Arnold Schwarzenegger, supra note 207 (“How many will be pushed into desperate action based on fears of sickness, disablement, and financial burden?”).

220 Letter from Teresa Favuzzi to Patty Berg, supra note 203.

221 Letter from Lauren Young, Md. Disability Law Ctr., to Peter A. Hammen, Chairman, Health & Gov't Operations Comm., Md. House of Delegates (Jan. 26, 2009), available at http://www.notdeadyet.org/2009/01/maryland-disability-law-center-opposes.html.

222 Id.

223 Id.

224 See supra Parts IV.A.2, IV.B.

225 See Dresser, supra note 68, at 1614-15.

226 Eckholm, supra note 146.

227 Id.

228 See, e.g., Basanta, supra note 201; Corbin, Caroline Mala, The First Amendment Right Against Compelled Listening, 89 B.U. L. REV. 939, 1008 (2009)Google Scholar; Pile, Whitney D., Note, The Right to Remain Silent: A First Amendment Analysis of Abortion Informed Consent Laws, 73 MO. L. REV. 243, 260 (2008)Google Scholar. Not all courts that have faced this issue have supported this view, although some decisions are pending. See supra text accompanying notes 149-51.

229 Jane E. Brody, Frank Talk About Care at Life's End, N.Y. TIMES, Aug. 23, 2010, http://www.nytimes.com/2010/08/24/health/24brod.html?_r=0; see also Astrow, Alan B. & Popp, Beth, The Palliative Care Information Act in Real Life, 364 NEW ENG. J. MED. 1885, 1885 (2011)Google Scholar (describing the law's “heavy-handed intrusion into the doctor-patient relationship”).

230 The Arizona bill had similar language. See supra text accompanying note 174.

231 Letter from Marilyn Golden to Arnold Schwarzenegger, supra note 207. “This heavy-handed bill would leave treating physicians little room to practice their craft as they see fit.” Id.

232 S. HEALTH COMM., supra note 203, at 7.

233 Astrow & Popp, supra note 229, at 1885 (“Whereas the prognosis of patients with advanced cancer can often be estimated, 75% of people in the United States die of conditions other than cancer … whose timing and course are far less predictable.”).

234 See supra text accompanying notes 197-200, 212-18.

235 See supra text accompanying notes 201-03, 219-23.

236 See supra Part V.B.2.

237 See supra Part V.B.4.

238 See supra text accompanying notes 58-67.

239 See supra Part V.B.1-3.

240 See supra Parts V.B.1, V.B.2.

241 See supra Part V.B.3.

242 See Reardon, supra note 126, at 34-35. He argues this despite conceding that causation may not be well established between abortion and these negative outcomes because the statistical associations only suggest the possibility of potential risk. Id. at 76-78.

243 Id. at 38.

244 Id. at 80-81.

245 Dresser, supra note 68, at 1600 (“I reject the claim that women considering abortion are in need of greater protection than are patients making other kinds of serious medical decisions.”); see also Manian, supra note 98, at 258-59 (noting that only in the case of the gender-specific abortion decision does the law react to the possibility of patient regret, premised on reasoning that treats women as less than competent adults capable of making autonomous medical decisions).

246 Gonzales v. Carhart, 550 U.S. 124, 183 n.7 (2008) (Ginsburg, J., dissenting) (quoting Cohen, Susan A., Abortion and Mental Health: Myths and Realities, 9 GUTTMACHER POL’Y REV. 8, 8 (2006)Google Scholar, and quoting six other articles to support this view, though noting two other articles by Reardon to the contrary); see also John Gever, No Psych Risk Seen from Abortion in First Trimester, MEDPAGE TODAY (Jan. 26, 2011), http://www.medpagetoday.com/OBGYN/Pregnancy/24550.

247 Gonzales, 550 U.S. at 183-84 (Ginsburg, J., dissenting). But see Blumenthal, supra note 105, at 10 (noting “certain women are more at risk to negative psychological sequelae”) (emphasis added).

248 See, e.g., Atul Gawande, Letting Go, NEW YORKER (Aug. 2, 2010), http://www.newyorker.com/reporting/2010/08/02/100802fa_fact_gawande; Sonia M. Suter, Dying a Good Death: It's All (or at Least a Lot of) Talk 11-12 (unpublished manuscript) (on file with author); see supra text accompanying notes 158-60.

249 Curlin, Farr A. et al., Religion, Conscience, and Controversial Clinical Practices, 356 NEW ENG. J. MED. 593, 597 (2007)Google Scholar.

250 Suter, supra note 248, at 10-12.

251 See supra text accompanying notes 158-62.

252 See supra text accompanying notes 112-14.

253 Reardon, supra note 126, at 46.

254 Breitbart, Vicki, Counseling for Medical Abortion, 183 AM. J. OBSTETRICS & GYNECOLOGY S26, S26 (2000)Google Scholar PubMed.

255 Moore, Ann M. et al., What Women Want from Abortion Counseling in the United States: A Qualitative Study of Abortion Patients in 2008, 50 SOC. WORK HEALTH CARE 424, 437 (2011)Google Scholar. Interestingly, many of the women sampled “assumed that other women need more support and intervention than they themselves needed to make a reasonable decision.” Id.

256 “Eighty-seven percent of all U.S. counties lacked an abortion provider in 2008; 35% of women live in those counties.” Facts on Induced Abortion in the United States, GUTTMACHER INST. (Aug. 2011), http://www.guttmacher.org/pubs/fb_induced_abortion.html. Planned Parenthood provides not only abortion services but also basic prenatal and other healthcare to women. As cuts are made in these programs, women have limited access to such care. In particular, there is a dearth of [abortion] clinics through the center of the country—from northern Texas through Kansas, Nebraska, South Dakota, Wyoming, and North Dakota. Roughly 400,000 women of reproductive age (between 15 and 44) live more than 150 miles from the closest clinic in this region.” Michael Keller & Allison Yarrow, The Geography of Abortion Access, DAILY BEAST (Jan. 22, 2013), http://www.thedailybeast.com/articles/2013/01/22/the-geography-of-abortion-access.html. “Often, the states with the fewest clinics also have more restrictions.” Id.

257 Sawicki, supra note 116, at 18 (observing that commentators and judges tend to view the “informed consent process as one grounded in objectivity and impartiality”); see also King & Moulton, supra note 11, at 439-42; Woodcock, supra note 198, at 496-97.

258 FURROW ET AL., supra note 5, at 241-42.

259 See infra text accompanying notes 262-65.

260 King & Moulton, supra note 11, at 436-37.

261 This is why the PPACA has focused on the development of decision aids for “preference sensitive care,” medical care for which there is no clinically preferential treatment option, but where treatment choices depend on patients’ preferences and values. See infra text accompanying notes 349-55.

262 Matthies v. Mastronomaco, 733 A.2d 456 (N.J. 1999).

263 Id. at 458.

264 Specifically, he believed she should no longer live independently, but should instead live in a long-term care facility so she could maintain a “‘life style conducive with her disability.’” Id. at 459.

265 Id. at 460-61.

266 Suter, Sonia M., The Routinization of Prenatal Testing, 28 AM. J.L. & MED. 233, 242 (2002).Google Scholar

267 Id.

268 See SCHNEIDER, supra note 47; Woodcock, supra note 198, at 502 (discussing nondirective norms in abortion counseling).

269 Michie, Susan et al., Nondirectiveness in Genetic Counseling: An Empirical Study, 60 AM. J. HUM. GENETICS 40 (1997)Google Scholar; see also Suter, supra note 266, at 244 n.66 (“Even when counselors try not to express views, patients tend to read between the lines, often interpreting the counselor's reticence in surprising ways.”).

270 Ben-Shahar & Schneider, supra note 3, at 696-98; Sawicki, supra note 116, at 27-28.

271 Cf. Suter, supra note 266, at 246 (noting that some commentators question whether genetic counselors are truly neutral).

272 I base this observation, in part, on my own experiences as a genetic counselor, and on empirical studies. See Michie et al., supra note 269, at 41 (discussing studies that show that patients may not find nondirectiveness useful).

273 Suter, supra note 266, at 243.

274 See infra text accompanying notes 324-29.

275 Exceptions are the rare instances where serious medical risks to the woman of continued pregnancy drives the decision about pregnancy termination.

276 Often genetic counselors provide genetic counseling having only just met the patient; in other words, they have no prior relationship with the patient.

277 See supra text accompanying note 13.

278 See supra text accompanying note 32.

279 See supra note 34 and accompanying text.

280 See supra Part V.B.2.

281 See, e.g., supra text accompanying note 152.

282 It is theoretically possible that such information would be relevant to someone who was ambivalent about this issue and wanted to know the state's perspective, but such a person is more likely to want to know the views of those she trusts and knows, rather than the views of the legislature with whom she has no special connection.

283 Eckholm, supra note 146.

284 Weitz, Tracy A. & Yanow, Susan, Implications of the Federal Abortion Ban for Women's Health in the United States, 16 REPROD. HEALTH MATTERS 99, 101Google Scholar (“While a strong majority of Americans support abortion in the first trimester, only 25% support the legality of second-trimester abortion and 68% of those surveyed in 2007 favoured making second-trimester abortion illegal.”).

285 See supra text accompanying notes 216-18.

286 See, e.g., Laura Bassett, North Carolina House Votes for Ultrasound Law, Overriding Gov. Perdue Veto, HUFFINGTON POST (July 26, 2011), http://www.huffingtonpost.com/2011/07/26/north-carolina-house-vote_n_910336.html.

287 Id.

288 See supra text accompanying note 145-48.

289 Kapp, Marshall B., Letter to the Editor, Informed Consent and Abortion, 1993 WIS. L. REV. 619, 621 (1993)Google Scholar.

290 Sawicki, supra note 116, at 16-17.

291 See supra text accompanying notes 14-18.

292 See supra text accompanying notes 32-45 (showing how courts avoid unduly interfering with physician discretion by defining the scope of disclosure in terms of the professional standard or what would be material to a reasonable person, as opposed to what would be reasonable to the particular patient, and by requiring that the patient suffer actual physical damages, as opposed to pure dignitary harm, in order to recover).

293 See FURROW ET AL., supra note 5, at 114-51, 185-220.

294 See id. at 152-84.

295 See supra note 34 and text accompanying notes 34-36.

296 See, e.g., supra text accompanying notes 179-80 (discussing the Michigan informed consent statute, which “is not intended to abrogate any part of the common law”).

297 See supra text accompanying notes 254-55.

298 See supra text accompanying notes 256.

299 See supra note 153 and accompanying text.

300 See supra text accompanying notes 40, 182-85.

301 Suter, supra note 248, at 14-15. In addition, the legislative histories of the statutes indicate that many people might believe some legal options are actually illegal. See supra text accompanying notes 158-61.

302 See supra notes 153-55 and accompanying text.

303 See Ben-Shahar & Schneider, supra note 3, at 698-702.

304 See Astrow & Popp, supra note 229, at 1885.

305 See supra text accompanying notes 116-24.

306 See supra text accompanying note 213-15; see also Sawicki, supra note 116, at 22-23.

307 See Sawicki, supra note 116, at 25.

308 Woodcock, supra note 198, at 502.

309 See supra text accompanying notes 37-40.

310 Although the Eighth Circuit upheld disclosure requirements regarding the association between suicide and abortions, it noted that physicians “who provide abortions should be capable of reviewing the research in the field, understanding the difference between relative risk and proof of causation, and explaining it correctly to their patients.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F. 3d 889, 904-05 (8th Cir. 2012). The court seemed to suggest that physicians could highlight the uncertainty and even controversy about whether there is a causal link between abortion and suicide. As the dissent pointed out, however, “judicial attempt[s] to direct the content of the conversation between a patient and her doctor [cannot] remedy the advisory's constitutional shortcomings.” Id. at 912 (Murphy, J., dissenting); see also supra note 124 and accompanying text.

311 Gonzales v. Carhart, 550 U.S. 124, 168 (2008) (upholding a federal statute that banned a particular late-term abortion procedure in spite of claims by many medical groups that this procedure is sometimes medically necessary). This was essentially the reasoning of the Eighth Circuit in upholding a disclosure mandate regarding the association between suicide and abortion in spite of “‘medical and scientific uncertainty,’ … as to whether abortion itself is a causal factor in the observed correlation between abortion and suicide.” Rounds, 686 F. 3d at 904. As the court noted, “the Supreme Court ‘has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty,’ including ‘in the abortion context.’” Id. at 905-06 (quoting Gonzales, 550 U.S. at 163-64); see also supra note 124 and accompanying text.

312 See Gala v. Hamilton, 715 A.2d 1108, 1114-15 (Pa. 1998).

313 See supra text accompanying note 126.

314 S. HEALTH COMM., supra note 203, at 5.

315 Basanta, supra note 201, at 4-5 (discussing the opposition by some physicians and religious groups to these treatment options); see also S. HEALTH COMM., supra note 203, at 8 (noting that Association of Northern California Oncologists opposes the bill because it does not consider VSED to be a “medical treatment”); Barbara Coombs Lee, At Last – A Victory for Decency over Dogma as California Right to Know End-of-Life Options Act Becomes Law, CAL. PROGRESS REP. (Oct. 2, 2008), http://www.californiaprogressreport.com/site/last-victory-decency-over-dogma-california-right-know-end-life-options-act-becomes-law (noting that “[t]he offending end-of-life option – the one [activists] don't want patients to know about – is a merciful procedure called ‘palliative sedation’”).

316 521 U.S. 793 (1997).

317 Id. at 807 n.11.

318 521 U.S. 702 (1997).

319 Id. at 737 (O’Connor, J., concurring).

320 Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 287 (1990) (O’Connor, J., concurring).

321 See, e.g., Sterling, Steph & Walters, Jessica L., Beyond Religious Refusals: The Case for Protecting Health Care Workers’ Provision of Abortion Care, 24 HARV. J.L. & GENDER 463, 465-66 (2001)Google Scholar (discussing conscience protections for healthcare professionals who refuse to perform abortion care and those who provide such care).

322 See supra text accompanying notes 186-87.

323 See supra text accompanying notes 280-85.

324 See, e.g., Corbin, supra note 228; Pile, supra note 228. So far not all courts to consider this issue have supported this view. See supra text accompanying notes 149-51.

325 N.C. MANSON & ONORA O’NEILL, RETHINKING INFORMED CONSENT 94-96 (2002); King & Moulton, supra note 11, at 487; Woodcock, supra note 198, at 496.

326 See infra text accompanying notes 354-55.

327 King & Moulton, supra note 11, at 474; Laufer-Ukeles, supra note 64, at 614; Suter, Sonia M., Giving in to Baby Markets: Regulation Without Prohibition, 16 MICH. J. GENDER & L. 217, 248 (2009)Google Scholar.

328 See supra text accompanying notes 30-31.

329 See SCHNEIDER, supra note 47, at 36-41.

330 Id. at 9.

331 Woodcock, supra note 198.

332 See, e.g., Moulton & King, supra note 25, at 89; Sawicki, supra note 116, at 34.

333 FURROW ET AL., supra note 5, at 285-86 (referencing Henderson v. Milobsky, 595 F.2d 654 (D.C. Cir. 1978)); see also Meisel, Alan, The “Exceptions” to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Decisionmaking, 1979 WIS. L. REV. 413, 453-60 (1979))Google Scholar.

334 In some cases the ultrasound requirements allow women the right to avoid seeing the ultrasound image, see supra text accompanying notes 144-47, but most of these statutes do not have any opt-out provisions for much of the other disclosure mandates.

335 See, e.g., supra notes 146-48.

336 I have made similar arguments with respect to nondirectiveness and its efforts to preserve patient autonomy by insisting that patients make decisions with only the information the genetics community has deemed relevant but without additional information that patients might want. See Suter, supra note 266, at 256-57.

337 S. HEALTH COMM., supra note 203, at 1.

338 Stern & DiFonzo, supra note 174, at 435 (“In view of Americans’ dismal showing in the preparation of advance directives, however, it seems obvious that patients cannot be relied upon to anticipate critical end of life issues. Moreover, patients hesitate to broach the subject of impending death with their physicians, many of whom would rather not talk about it.”); see also supra text accompanying notes 159-61.

339 See supra text accompanying notes 19-28 (noting that this explains, to a large extent, the emergence of the informed consent doctrine).

340 See supra text accompanying notes 19-20.

341 Moulton & King, supra note 25, at 87.

342 The provision would have required Medicare reimbursement for physicians who discuss end-of-life wishes with patients who desire such a conversation. Robert Pear, Obama Returns to End-of-Life Plan that Caused Stir, N.Y. TIMES (Dec. 25, 2010), http://www.nytimes.com/2010/12/26/us/politics/26death.html?pagewanted=all.

343 Id.

344 Fried, Terri R. & Drickamer, Margaret, Garnering Support for Advance Care Planning, 303 JAMA 269, 270 (2010)Google Scholar (suggesting it is important to understand that it is about choice); Alec MacGillis, In Wisconsin, a Pioneering Program: Debate over End-of-Life Care Began in Small Midwestern Town, WASH. POST (Sept. 4, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/09/03/AR2009090303833.html.

345 Pear, supra note 341.

346 Id.

347 Robert Pear, U.S. Alters Rule on Paying for End-of-Life Planning, N.Y. TIMES (Jan. 4, 2011), http://www.nytimes.com/2011/01/05/health/policy/05health.html.

348 Although the dialogue should not be caricatured in a way that is unresponsive to patient's requests for information about how others approach these decisions. See supra text accompanying note 274.

349 See Laufer-Ukeles, supra note 64, at 622; Suter, supra note 327, at 249.

350 Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (to be codified in scattered sections of the U.S.C.).

351 42 U.S.C.A. § 299(b)(1)(A) (West 2012).

352 Patient Protection and Affordable Care Act § 3506, 42 U.S.C.A. § 299b-36(a).

353 Patient Protection and Affordable Care Act § 3506, 42 U.S.C.A. § 299b-36(b)(2).

354 Id.

355 Patient Protection and Affordable Care Act § 3506, 42 U.S.C.A. § 299b-36(b)(2), -36(c)(1)(A).

356 Furrow, supra note 3, at 1766; see also Patient Protection and Affordable Care Act § 3506, 42 U.S.C.A. § 299b-36(b)(1) (describing them as “educational tool[s] that help[] patients, caregivers, or authorized representatives understand and communicate their beliefs and preferences related to their treatment options, and to decide with their health care provider what treatments are best for them based on their treatment options, scientific evidence, circumstances, beliefs, and preferences”). Decision aids “typically include DVDs that explain clinical choices, brochures, and other methods of presenting useful information to patients.” Furrow, supra note 3, at 1766. The website of the Center for Shared Decision Making provides decisions aids for various kinds of medical decisions. See Decision Aid Library, DARMOUTH-HITCHCOCK, http://patients.dartmouth-hitchcock.org/shared_decision_making/decision_aid_library.html (last visited Feb. 4, 2013).

357 Furrow, supra note 3, at 1767.

358 BARRY FURROW ET AL., HEALTH CARE REFORM SUPPLEMENTARY MATERIALs 20 (2011). This is because once they “replace the normal process of informed consent disclosure” in Medicare health plans, they will eventually be adopted in most settings and will ultimately become “the community standard of information disclosure.” Id. This aspect of PPACA responds to one of the criticisms of decision aids to date, which is that their “creation and use … is currently controlled only by market forces.” Sawicki, Nadia N., Patient Protection and Decision-Aid Quality: Regulatory and Tort Law Approaches, 54 ARIZ. L. REV. 621, 626 (2012)Google Scholar.

359 Patient Protection and Affordable Care Act § 3506, 42 U.S.C.A. § 299b-36(d)(1)(B).

360 As some scholars have pointed out, there is a real need to ensure that decision aids, particularly those that address “value-laden medical decisions” are unbiased and contain correct information. See Sawicki, supra note 358, at 639 (noting the fact that the information disclosure mandates in the context of abortion are actually implemented in many states with the use of decision aids, not all of which are unbiased).

361 Furrow, supra note 3, at 1766.

362 Patient Protection and Affordable Care Act § 3506, 42 U.S.C.A. § 299b-36(a).

363 See Sawicki, supra note 358, at 638 (noting that patients may “find decision-support tools on their own … and there is no guarantee that the physician will be available to mediate this content” and that at least one state allows patients to “bypass the physician interaction altogether by offering an online alternative to the traditional informed consent process”).

364 Patient Protection and Affordable Care Act § 2713, 42 U.S.C.A. § 300gg-13; see also Cogan, John Aloysius Jr., The Affordable Care Act's Preventive Services Mandate: Breaking Down the Barriers to Nationwide Access to Preventive Services, 39 J.L. MED. & ETHICS 355, 356-57 (2011)Google Scholar.

365 King & Moulton, supra note 11, at 469.

366 Akl et al., supra note 3, at 2; see also BARBARA L. MCANENY, CMS, REPORT 7-A-10, REPORT OF THE COUNCIL ON MED. SERVICE: SHARED DECISION-MAKING (2010), available at http://www.ama-assn.org/resources/doc/cms/a10-cms-rpt-7.pdf; King & Moulton, supra note 11, at 469-70; King, Jaime S. et al., The Potential of Shared Decision Making to Reduce Health Disparities, 39 J.L. MED. & ETHICS 30, 31 (2011)Google Scholar.

367 See, e.g., Laufer-Ukeles, supra note 64, at 618; Suter, supra note 327, at 266; Wachbroit, Robert & Wasserman, David, Patient Autonomy and Value-Neutrality in Nondirective Genetic Counseling, 6 STAN. L. & POL’Y REV. 103, 103 (1994)Google Scholar; Woodcock, supra note 198, at 496.

368 See Suter, supra note 248, at 50.

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The Politics of Information: Informed Consent in Abortion and End-of-Life Decision Making

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