Monday, July 26, 2021
Ruth Colker (Ohio State University), Uninformed Consent, 101 B.U. L. Rev. (2021):
Since the Supreme Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, there has been a race to the bottom to use the doctrine of so-called “informed consent” to coerce pregnant women into becoming mothers by giving birth to a child. Pregnant women are handed glossy brochures with four-week-old fetuses magnified into portrayals of living children and falsely told that their decision to terminate their pregnancy is likely to lead to increased risks of breast cancer, depression, and future fertility problems. Childbirth, by contrast, is romantically portrayed as a risk-free, wholly positive experience, consistent with pregnant women’s natural destiny as mothers.
This race to the bottom is inconsistent with standard tort principles that apply to medical procedures, but courts have tolerated it because of their stereotypical conception of the pregnant person as a “mother” and the fetus as an “unborn child.” This Article argues that an equality-based conception of reproductive rights can help unmask the gender-based stereotypes that underlie this race to the bottom.
Constructively, this Article argues that informed consent is possible within abortion jurisprudence. The Down syndrome proinformation campaign has been a successful part of such a movement. Unfortunately, the current rush by states to criminalize an individual’s decision to terminate a pregnancy after a prenatal diagnosis of Down syndrome is the latest coercive step that is unraveling such important advances in informed consent.
Pregnant people, like all patients, are entitled to receive fair and balanced information to make informed decisions about their personal autonomy. It is important to recognize their right to decide whether to become parents rather than to conceptualize them as already being “mothers” due to their pregnancy.