South Dakota’s Abortion Script: The Hijacking of Informed Consent

In a previous post, I suggested that informed consent could sometimes be misused. South Dakota has provided a clear example of such misuse and has set a frightening precedent reminiscent of Big Brother in George Orwell’s 1984.

A law went into effect in July, 2008, requiring that any woman seeking an abortion in South Dakota must be told that she is terminating the life of “a whole, separate, unique, living human being” with whom she has an “existing relationship” and that abortion terminates “her existing constitutional rights with regards to that relationship.”

It requires that doctors give patients information about medical risks, but it doesn’t leave anything to chance: it specifies what the risks are, including depression, suicide, danger to subsequent pregnancies, and death. The current state of development of the fetus must be described, and the woman must be asked if she wants to see a sonogram of the fetus. All of this must be done in writing, and the woman must sign each page of documentation. Physicians who fail to comply can lose their license or be charged with a misdemeanor.

This is an unconscionable intrusion by the state into the doctor-patient relationship. It would be bad enough if the information in the script were scientifically accurate, but it isn’t. Some of the risks listed by the required script are not supported by the medical literature. As an article in Slate put it, South Dakota doctors face a dilemma: mislead your patients or break the law. The state is requiring doctors to provide misinformation and it leaves no leeway for incorporating new evidence that may appear. It does not allow any leeway for judgment. It does not allow for adjustments based on the characteristics of the individual patient compared to the characteristics of the group of subjects in the studies that the risk statistics came from. It implies that doctors are not competent to advise their patients and that patients are not competent to make informed decisions without state interference. And it shows that the state legislature is not competent to evaluate medical evidence.

Just as “intelligent design” is a deliberate ploy to get religion into the classroom, the South Dakota law is a deliberate ploy to get ideology into the doctor’s office. South Dakota has repeatedly tried to ban abortions entirely. The most recent effort was a November, 2008 referendum that failed: 55.3% of voters were against it, vs. 44.7% for. The “script” law is nothing but a thinly disguised attempt to stop abortions – in total disregard of the voters’ wishes.

This law was originally passed in 2005. Planned Parenthood was able to get an injunction suspending the law, but on June 27, 2008 the Circuit Court of Appeals lifted the injunction. More details can be found in an excellent article in the New England Journal of Medicine

It will be interesting to see if this law has any impact on the number of abortions in South Dakota. I’m guessing it won’t. Government-mandated scripts tend to get ignored as meaningless formalities: just look at how easy it has been for diet supplement purchasers to ignore the required FDA disclaimers and for smokers to ignore the warnings on cigarette packages. If anything, this law may just increase the emotional suffering of patients who have already had to make a very difficult decision.

So the ideologues who passed this law probably won’t achieve what they hoped to achieve. Instead, they have established an ominous precedent by allowing the state to dictate word-for-word what a doctor must say to his patient.

I don’t think anyone really likes the idea of abortions: most people who accept abortions see them as the lesser of two evils. The dilemmas are ethical, not medical. Women seeking an abortion should be told the medical facts and should be interviewed sensitively to make sure they understand, have seriously considered the alternatives, and have made a decision they can live with. Good doctors already do that kind of thing quite well; this legislation will not make them do it any better. Arguably, it’s likely to make them do worse.

Once the foot is in the door, where will such interference stop? Imagine if no prescription could be written without the doctor first reciting a state-mandated script. I admit I’m tempted by the idea of requiring chiropractors to tell their patients about Sandra Nette and the risks of stroke before they consent to neck manipulation. I also fantasize about requiring true informed consent for diet supplements and homeopathy, especially if they would let SBM authors write the scripts. But I don’t think any of us would seriously want that degree of state interference, even in the service of science and reason. If nothing else, because science must continually adapt to new evidence, while a state-mandated script is fixed dogma.

This law is just wrong, wrong, wrong on every level. The court decision was divided. Let us hope that a new legal challenge may come along with better legal arguments to sway the judges who formed the majority. Let us hope this law will be struck down. Let us hope that this unfortunate precedent is not the harbinger of Big Brother’s intrusion into every doctor-patient encounter.

Posted in: Politics and Regulation, Surgical Procedures

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