One of the most intense battlegrounds in the abortion debate these days revolves around a simple question: What do women need to know before they terminate a pregnancy?
South Dakota lawmakers want to compel doctors -- under penalty of a month in jail -- to tell women that the abortion they seek will kill a “whole, separate, unique, living human being.”
South Carolina is on the verge of requiring that a woman review ultrasound images of her fetus with a physician before consenting to end a pregnancy. In Mississippi, a woman must be given a chance to listen in as the abortion doctor checks the fetal heartbeat.
To antiabortion activist Leslee Unruh, such laws represent protection. Unruh had an abortion decades ago and has mourned that decision ever since; she believes she can save other women similar anguish by making sure that they know precisely what they’ll be losing if they end a pregnancy.
“I was told [the fetus] was just a blob -- nothing more. When you’re in a crisis, you want to believe lots of things,” Unruh said. She later came to see the “blob” as a baby who should have been her child -- and says she hears similar stories every day at her counseling center in Sioux Falls, S.D.: “The women come to us saying they weren’t informed.”
Informed-consent laws are not new or unusual; 32 states have them. In their most basic form, they require women to be offered pamphlets explaining fetal development and describing alternatives to abortion.
Increasingly, however, antiabortion activists have been pushing for women to receive more-detailed -- and more-emotionally charged -- information. Legislators last year introduced 92 bills to expand informed-consent laws, according to the Center for Reproductive Rights, which opposes such legislation.
Abortion-rights activists consider informed consent a sham -- a not-so-subtle means to scare, mislead or shame women into backing out of a decision they’ve made after careful consideration.
The most contested of these laws is South Dakota’s, which was tested Wednesday in federal court.
The law sets out a long list of warnings that abortion doctors must read to each patient, pausing to make sure she understands and signs each page of the form. The woman must be told that having an abortion could make her suicidal; subject her to “psychological distress"; and put her at risk for infection, infertility and even death.
She must be told that the abortion will terminate a human being’s life and end her “existing relationship” with her fetus, described in the statute as an “unborn child.” Patients must be given at least two hours to ponder this information before their abortions. Doctor who fail to follow the law are subject to criminal prosecution.
In the hearing Wednesday before the U.S. 8th Circuit Court of Appeals in St. Louis, attorneys for Planned Parenthood argued that the law violated physicians’ right to free speech and substituted ideology for science. In particular, they’re concerned about doctors being forced to call a fetus -- even at the earliest stages of gestation -- a “human being.”
State Atty. Gen. Larry Long said he saw no problem with that term: “The women know their pregnancy isn’t a monkey or a German shepherd. Why is it so offensive to tell them it’s a human being?”
But abortion providers -- and some outside legal experts -- disagree.
“If a patient asked our doctors, ‘When does life begin?’ they would respond that there’s no scientific answer to that. It’s a religious, spiritual, personal [question] that women have to answer for themselves,” said Sarah Stoesz, chief executive for Planned Parenthood affiliates in South Dakota, North Dakota and Minnesota.
“This isn’t neutral medical information. This is saying, in so many words, that abortion is murder of a human being,” said John Seery, a political scientist at Pomona College who studies abortion politics.
The South Dakota Legislature passed the informed-consent provision in 2005, but Planned Parenthood sued to block it. A district judge ruled that the law could not take effect until the suit was resolved. The state appealed that decision to a three-judge panel of the 8th Circuit Court of Appeals -- which ruled in October that the law should remain blocked. In an unusual move, the circuit court then voted to hear the case again before the entire bench of 11 judges.
That was the hearing that unfolded Wednesday morning; both sides described it as animated and intense -- and both declined to predict an outcome, saying the judges appeared to be closely divided.
As antiabortion activists await the ruling, which could take months, they continue the push to expand consent laws, often supporting their position with fat stacks of affidavits from women who say that having an abortion harmed them psychologically or physically.
At least four states require doctors to perform ultrasounds on all patients and give women the option of viewing those images. South Carolina would be the first in the nation to require women to see pictures from inside their wombs. The bill passed the state House overwhelmingly and is moving through the Senate. Missouri recently introduced a similar bill.
Another emerging strategy is to require doctors to talk to their patients about fetal pain -- and in some cases, to offer anesthesia for the fetus. Several states, including Minnesota, mandate such discussions, at least for late-term abortions. Minnesota is also among several states that compel doctors to inform women that abortion may be linked to breast cancer, though national cancer experts have found no such connection.
Until recently, Seery said he would have considered the drive to expand consent laws a winning strategy for the antiabortion movement. But he notes that South Dakota voters last fall rejected a legislative effort to ban virtually all abortions. He suspects the far-reaching provisions in the consent law will provoke a similar backlash.
“Aggressive legislators may overplay their hand,” Seery said. “Let’s just see whether the court will let this stand.”