The Motive Behind"Informed Consent”

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By Susan Lipkin

On August 22, 1979, Judge Leroy Contie handed down his long-awaited ruling on the infamous "Akron Ordinance". Contie struck down the four most oppressive sections of the ordinance, which had become a prototype for anti-choice legislation across the country. Those sections required minors to obtain permission of a parent or guardian before undergoing an abortion, humane disposal of the fetus, doctors to inform a woman prior to an abortion of the procedures to be used and the possible physical and emotional complications-so-called "informed consent," and periodic city inspection of records of abortions and complications. Among provisions retained by Contie is a 24-hour cooling-off period between the time when a woman consents to an abortion and the abortion itself. Another requires a second doctor to be present during an abortion to preserve the life of the fetus when the procedure is performed after the fetus is capable of life outside the womb.

In evaluating the judge's ruling, pro-choice advocates can claim a major victory, along with some small setbacks. The 24-hour waiting period, for instance, is selective and puts unnecessary burdens on women seeking abortions. Judge Contie chose not to rule at all on several sections which regulated or prohibited hospital abortions. It is very likely that the ACLU will pursue litigation in an attempt to have those specific parts of the ordinance stricken.

The following is an in-depth analysis of the hidden threats of "informed consent" legislation. Although deleted from the Akron Ordinance, informed consent laws remain a threat to a woman's right to access to safe and legal abortion.

In Ohio and throughout the rest of the country, bills have been introduced requiring special "informed consent" to abortion procedures. No one would disagree with the premise that a patient should be fully informed about any medical procedure. Why then is there controversy around informed consent to abortion?

Informed consent provisions in legislation such as the well-known Akron Ordinance go beyond what is required for other medical procedures. This type of legislation is a thinly disguised attempt to discourage women from having abortions. It singles out abortion as being different from other medical procedures. Some of the "facts" which would be presented to the abortion patient are medically inaccurate and do not cover the abortion itself.

Ohio law does have guidelines for informed consent to surgical or medical procedures. Section 2317.54 of the Ohio Revised Code requires that informed consent include "the nature and purpose of the procedure or procedures, and what the procedures are expected to accomplish, together with the reasonably known risks." In addition, Section 3701.34.1 (public health rules on abortion) makes provisions for after-care instructions to protect the woman's health, reporting forms, and pathology reports following abortions. In the 1976 Supreme Court decision of Planned Parenthood of Missouri v. Danforth, the justices had this to say in a footnote: "[W]e are content to accept, as the meaning of informed consent, the giving of information to the patient as to just what would be done and as to its consequences. To ascribe more meaning than this might well confine the attending physician in an undesired and uncomfortable straitjacket in the practice of his profession."

Legislation such as the Akron Ordinance does ascribe more meaning to "informed consent" than exists in current law. Although Judge Contic struck down the informed consent provisions of that ordinance, similar legislation is pending elsewhere. There is a strong rumor circulating around the state that an Informed Consent Bill will be introduced

when the Ohio Legislature reconvenes this month.

Along with waiting periods and spousal and parental consent or notification requirements, this type of legislation usually lays out very explicitly what information should be given. It generally begins with the assumption that a living human being, a person, is created at the moment of conception. Although this is a belief held by some people, there has never been agreement among medical, scientific, or religious leaders on this question. To write one religious opinion into law is, as many religious leaders assert, a violation of religious liberty.

Informed consent legislation has included inaccurate and biased information about the risks associated with abortion and has required detailed descriptions of fetal development. It refers to even first trimester abortion as a "major surgical procedure". Vacuum aspiration is the type of abortion usually performed during the first trimester of pregnancy and is the most common type of abortion performed overall. It is considered to be minor surgery and is most often done in out-patient facilities requiring only local anesthesia. The majority of women experience no physical complications and return to normal activity within a few days. First trimester abortion is five times safer than tonsillectomy and ten times safer than normal childbirth.

Every woman contemplating an abortion should be given an accurate description of the procedure, its risks and possible complications, as well as after-care

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Reproductive Rights Newsletter

instructions to minimize the risk. All of this is consistent with sound medical practice. The requirements in informed consent legislation would lead a woman to believe that she stands a great chance of losing her life, her future ability to bear children, and her sanity.

The required descriptions of fetal development go beyond the procedure itself and its risks. This requirement is designed to produce guilt and doubt in the woman; to convince her that she is committing murder in choosing to have the abortion; to dissuade her rather than inform her. Many women have ambivalent feelings about abortion even though they feel, after careful consideration, that abortion is the best solution for them at a particular time in their lives. It is normal to have mixed feelings about any important decision. Descriptions of this type would serve to play upon those mixed feelings to manipulate women out of the decision to have an abortion. It amounts to psychological battering.

Dr. John H. Sanders, in testimony in the Akron case, confirmed this view of the provisions mentioned here from a physician's perspective. He felt that these provisions interfere with the practice of medicine. He stated that doctors, in their best professional judgment, may tailor information to the specific needs of the individual patient. Dr. Sanders stated that the information the doctor would be required to give would "prevent rational decisions"

and "cause fear, guilt, and irrational doubt."

Beyond the fear-inducing and medically questionable requirements of informed consent laws, other provisions would seem to be designed to make the abortion inconvenient and expensive. Waiting periods of 24 hours or more between giving consent and having the abortion can create hardships for women who have to travel long distances to get to appropriate facilities or who must take time off from work. By requiring physicians to do the types of counseling that nurses and social workers commonly do now would raise the costs of abortion. Doctors would most likely not hesitate to charge more for spending more time with each woman.

Other common provisions, such as spousal and parental notification or consent, have not received support in the courts. These provisions are an invasion of privacy and may put married women and minors in threatening situations. While many counselors would encourage women to confide in and share this experience with others who are important in their lives, it should be up to each individual to decide when and where that is appropriate and safe.

Informed consent legislation is designed to influence women to decide against abortion and to make abortions harder to get. Making abortions less accessible has never stopped them-it has only served to make them unsafe.

-Susan Lipkin Associate Director Education for Freedom of Choice in Ohio

OHIO RAPE BILL

State Rep. Vernon F. Cook of Cuyahoga Falls has introduced an Ohio bill calling for tougher prison penalties for rapists. The bill was prompted by Akron detective Richard May who feels that Ohio rape laws do not deal harshly enough with the common "carcer" (repeat) rapist. Cook's bill calls for a minimum five-year prison term for rape; a minimum 10-year term for aggravated rape (rape involving the use of actual or threatened physical harm and death or where the criminal has been convicted previously of a similar crime); and minimum terms of 10 and 15. years when the rape or aggravated rape is against a girl under 13.

Counter-Demonstration for Abortion Rights

On September 15, the so-called "Right-to-Lifers" plan to march from Cleveland State University to Public Square. The Pro-Choice Action Committee (PCAC) is calling for a counter-demonstration against the anti-abortionists. PCAC will leaflet the parade route (beginning from 12th and Euclid) and sponsor a large rally at noon in Public Square. Prochoice demonstrators will be visible with large banners and posters.

This demonstration can be very important for the reproductive rights movement. Attacks on women's rights are growing. The national Congress is expected to approve an even more stringent version of the Hyde Amendment this year. In Ohio, the state legislature has already passed one anti-abortion rider in the budget bill, and an Akron-type bill will be debated in the State Legislature on September 11.

We can't stop these anti-abortionists by being quiet and invisible. We hope many people show up for the demonstration and show their support for a woman's right to free, safe and legal abortions.

If you want to help with the demonstration, or if you need more information, call EFCO at 579-0028.

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