The purpose of obtaining informed consent is to ensure that patients are provided with the information they need to make an educated decision about their healthcare. With respect to abortion, many states have adopted policies requiring women to hear and see ultrasounds, fetal heartbeats, and images of actual abortions before they are considered to have given their informed consent to the procedure. The graphic descriptions and information provided to women are sometimes used to dissuade women from pursuing abortions.
Abortion providers are required to tell patients detailed, and often graphic, information about the procedure they are about to undergo.
Currently, thirty-three states have varying laws related to informed consent. By either statute or case law, healthcare providers are required to obtain informed consent from patients prior to performing an abortion. Oftentimes the requirements go further than general requirements for consent concerning nonemergency medical procedures. In twenty-three of these states (pdf), abortion providers are required to tell patients detailed, and often graphic, information about the procedure they are about to undergo. Four states use graphic and provocative language to describe the abortion procedures.
Until recently, the arguments against these requirements were based on the First Amendment and their restriction of the rights of doctors and healthcare providers. However, due to recent federal district court decisions in Texas, Louisiana, and Mississippi, the focus has shifted from First Amendment arguments to arguments focusing on how these restrictions place an undue burden on the ability of abortion clinics and healthcare providers to do their job.
Further, doctors and healthcare providers argue that these privileges are unnecessary due to the very minimal probability of risk.
Many states also require admitting privileges as a part of these requirements. Admitting privileges necessitate that the doctor have some sort of affiliation with a local hospital and allow the doctor to admit his or her patients to said hospital. This can become problematic for doctors since hospitals are often wary to extend these privileges.
In many cases, doctors commute from out of town and even from out of state. Thus, the travelling doctors and providers are unable to receive admitting privileges at the local hospitals because of their lack of proximity. Due to the closure of facilities across the states, patients may be left without doctors or healthcare providers to perform these medical procedures.
Further, doctors and healthcare providers argue that these privileges are unnecessary due to the very minimal probability of risk. If, in the rare case an emergency arises, patients could be transported to an emergency room that is equipped to handle many of the same symptoms that occur, for example, in miscarriages.
The question boils down to whether or not the requirements on abortion clinics are too burdensome, or just burdensome enough to not tip the scales to the side of being “undue.”
The consequences of these restrictions and laws are forcing many existing clinics across the nation to shut down. However, supporters of these bills and policies object to their opponents reasoning, arguing instead that the requirements are necessary to protect women’s health.
Current Supreme Court precedent holds that “states cannot limit abortion in a way that imposes an ‘undue burden’ on a woman’s ability to obtain an abortion.” The recent holdings in the federal district courts in Texas, Louisiana, and Mississippi highlight the issue of what constitutes an “undue burden” on abortion clinics. The question boils down to whether or not the requirements on abortion clinics are too burdensome, or just burdensome enough to not tip the scales to the side of being “undue.”
Recently, Judge John deGravelles of the U.S. District Court for the Middle District of Louisiana issued a temporary restraining order that blocked enforcement of a new law that would require physicians to obtain admitting privileges to admit patients at hospitals within thirty miles of the clinic where the doctor works. Those filing the lawsuit claim that doctors have not had enough time to obtain the privileges. The effects of this law could be eye-raising, possibly resulting in the closure of all of the remaining clinics in the state. At least three out of five clinics in Louisiana are currently on the road to being shut down. The closures would leave clinics operating only in the northwestern portion of Louisiana, making it difficult for people further away to obtain access to these facilities due to distance and overworked “sister” clinics in the surrounding areas.
In short, the Texas law would require all abortion clinics to meet the same standards as ambulatory surgical centers that do more complex surgeries.
On August 29, 2014, Judge Earl “Lee” Yeakel of the U.S. District Court for the Western District of Texas declared certain restrictions on abortions in that state unconstitutional. Under the Texas Woman’s Right to Know Act, the requirements put in place involved forcing the women seeking abortions to view sonographs and hear the heartbeat of the fetus. In addition, doctors must also explain certain aspects of the pregnancy and abortion, such as the current status of the pregnancy and how the procedure will affect the fetus. Doctors would only able to perform the abortion after receiving the woman’s informed consent.
Restrictions also include requirements such as mandatory sonograms and costly facilities like operating rooms and air filtration systems that are only common in surgical settings. In short, the Texas law would require all abortion clinics to meet the same standards as ambulatory surgical centers that do more complex surgeries, which would result in massive costs that abortion providers say could not be met by a significant amount of clinics in the state.
These ambulatory care standards involve requirements such as minimum door widths and types of materials to be used in floors and ceilings, even if surgery will not be provided at the clinics that offer the abortion pill option. Many see this as an overly burdensome law that would force more than half of the abortion clinics in Texas to close down. These closures would leave many women in the southernmost part of Texas with at least a four-hour drive to the closest abortion provider.
“These substantial obstacles have reached a tipping point,” Yeakel wrote in the opinion. Yeakel concluded that the effect of the new requirements would leave hundreds of thousands of women who may seek an abortion more than 150 miles away from an eligible facility.
Based on the current status of litigation, the Supreme Court of the United States will likely end up deciding whether or not these restrictions and requirements do impose undue burdens on citizens and healthcare providers.
In Mississippi, panel of judges from the U.S. Court of Appeals for the Fifth Circuit ruled last month that the state’s admitting-privileges law could not take effect because it would force the last remaining abortion-providing clinic in the state to close down. The 2012 state law requiring doctors in abortion clinics to obtain admitting privileges was ruled unconstitutional. In his opinion, Judge E. Grady Jolly wrote that “Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state.”
Based on the current status of litigation, the Supreme Court of the United States will likely end up deciding whether or not these restrictions and requirements do impose undue burdens on citizens and healthcare providers. As stated by Lyle Denniston from SCOTUSblog, “[t]he issue may not stop at the appeals court level.”