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Kentucky abortion law affirmed by the Supreme Court disguises coercion as informed consent

This week, the Supreme Court upheld a Kentucky law requiring physicians to describe embryonic or fetal anatomy to the patient prior to an abortion, as well as requiring the patient to listen to the “fetal heartbeat.” As a point of medical terminology, pregnancy for the first 10 weeks is in the form of an embryo, after which (and for the remainder of the pregnancy) it is a fetus. The law states physicians must auscultate the fetal heartbeat of the unborn child, hoping that voters and physicians won’t mind legislators equating an embryo with a fetus and “unborn” child.”

Supporters of the law claim that these procedures are simply part of the “informed consent process,” a cringe-inducing appropriation of a process typically used to engage and protect patients.

Supporters of the law claim that these procedures are simply part of the “informed consent process,” a cringe-inducing appropriation of a process typically used to engage and protect patients prior to any medical procedure with risk. The law is intentionally building on precedent: the controversial 1992 Supreme Court case Planned Parenthood v. Casey required patients be given the option of reading anti-abortion materials, but patients could decline. In this case, no one, neither physician nor patient, has the option to avoid this state-sanctioned speech.

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In effect, conservative lawmakers are purposefully cloaking legislation in legitimate-sounding medical terminology to advance political (anti-abortion) aims.

Informed consent is a modern concept: It arose as a research requirement after numerous hideous violations of rights in the course of medical research. These included the infamous Tuskegee experiments, in which Black men were left untreated for syphilis even after the cure was discovered, and the Willowbrook study, in which doctors studied Hepatitis A vaccine on institutionalized children with mental disabilities without consent. Informed consent was put in place to protect people’s autonomy and personal dignity — their ability to make decisions in their own best interest, and to be treated as equal humans in charge of their own fate.

True informed consent puts the patient at the center of medical decision making, not the physician or the state or any other organization or institution.

The Kentucky law represents the opposite of that intent. It places the ideology of legislators first — above the doctor’s professional determination of clinically necessary information and above the desire of the individual undergoing the procedure. The scripted material that a physician is required by law to read, word for word, to the patient is potentially unwanted, coercive and harmful.

Patients who present for an abortion are not coming in for a mystery procedure — nor is it a particularly enjoyable one — meaning that typically, walking in the door is intentional and requires an unusual level of thought and conviction, compared to other ambulatory procedures, like getting an ablation for heavy uterine bleeding, or a diagnostic scope of the uterus and cervix.

Patients seeking pregnancy termination currently receive standard informed consent — for example, one sample Planned Parenthood consent form for abortion includes a litany of medical risks including hemorrhage, infection, sterility, injury to bowel/bladder and death, uses the term “death of the fetus” three times and requires that the patient sign next to the statement: “I understand that [the doctor] is going to perform an abortion on me, which will end my pregnancy and will result in the death of the fetus.”

True informed consent puts the patient at the center of medical decision making, not the physician or the state or any other organization or institution.

Overall, this procedure is not chosen or performed without a full and clear discussion of what it entails. If seeing an ultrasound or hearing a heartbeat is helpful to an individual patient, they have every right to it. However, requiring it sends a clear and unidirectional message. Placing physicians in the position of providing language, and showing pictures, which are designed by legislators to be coercive, undermines the fundamental trust between physician and patient. Worse, women with a wanted pregnancy and lethal anomalies, or victims of rape or incest who are forced to listen to coercive language may experience amplification of psychological trauma.

Women present for termination of pregnancy for many reasons. What they expect from their physician is unbiased, medically accurate information. Women deserve to be treated with dignity. Assumptions about their inability to make complex informed decisions about their body independently is, fundamentally, misogyny.

We must not be fooled into thinking that the Kentucky law enhances informed consent in any way. This is meant to erode autonomy and trust. It is political ideology masquerading as medicine. What it is not is health care.

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