A new law requiring doctors to tell women that medication-induced abortions can be reversed — a premise most of the health care community refutes — could be in violation of the First Amendment, experts say.
The U.S. Supreme Court in 1992, in Planned Parenthood v. Casey, ruled that, in the interest of informed consent, it was constitutionally permissible for states to compel physicians to provide women with truthful information that may encourage them to reconsider a decision to have an abortion. Based on the ruling, 35 states mandate counseling. Twenty-seven detail exactly what doctors must say.
The Pennsylvania law examined in Planned Parenthood v. Casey, however, stipulated that women be informed about fetal development, alternatives to abortion, and the risks of pregnancy. In recent years, the types of things legislators are asking doctors to tell women have changed, says Elizabeth Nash, a policy analyst at the Guttmacher Institute, a pro-choice think tank based in New York. "Now, more and more, we're seeing unsubstantiated science," Nash says.
Some in the medical community see these laws as far enough removed from Planned Parenthood v. Casey to merit a re-examination of mandatory counseling and the First Amendment, which prohibits the government from forcing people to make false or misleading statements.
"This is politics parading as protection of patient rights, which is highly troubling from a constitutional perspective," says Wendy Mariner, a professor of health law at Boston University. "It is essentially forcing physicians to become a mouthpiece for a political position."
Doctors in five states, for example, are being compelled to tell women that getting an abortion may increase their risk of developing breast cancer — a link that's been debunked by the National Cancer Institute. Of the 20 states that purport to educate women about the potential effects of abortion on future fertility, four, including Arizona, do so inaccurately.
Arizona's latest law fits with the trend. Supporters point to anecdotal evidence that some women given the hormone progesterone after taking one of the two pills required to medicinally induce abortion went on to deliver healthy babies. But, as the American Congress of Obstetricians and Gynocologists officially declared Tuesday, there has been no rigorous scientific examination of the idea.
"The Legislature is requiring us to tell patients something that has no foundation in evidence-based medical practice," said Dr. Eric Reuss, an OBGYN based in Scottsdale who serves as treasurer for the Arizona chapter of ACOG. "It's pure speculation — quackery."
Mariner, who published an article examining First Amendment implications of these types of abortion laws in the New England Journal of Medicine Thursday, argues that, in the interest of ensuring safe and effective care, the government has the right to compel physicians to give patients information they need to make good decisions. However, it must do so in a viewpoint neutral manner, so doctors are not forced to speak for the state.
Up to this point, most lawsuits addressing this issue have followed the precedent set by Planned Parenthood v. Casey. However, the Fourth Circuit U.S. Court of Appeals recently pushed the other direction, striking down a North Carolina statute that required physicians to use ultrasound technology to show women their unborn child while pointing out where the organs and limbs are.
Even though the information given "may be strictly factual," the court wrote, "the context surrounding the delivery of it promotes the viewpoint the state wishes to encourage," effectively making doctors into mouthpieces for the government.
At the heart of the matter is protecting the doctor/patient relationship, the court emphasized: Lying partially disrobed on an examination table, a patient, who relies on her doctor for objective medical information, is vulnerable.
"Informed consent is really, really important; you should tell people the facts," Mariner says. "But it's another thing to say, 'We want you to tell the patient what we believe — not necessarily the facts.'"
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