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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15 thoughts on “South Dakota’s Abortion Script: The Hijacking of Informed Consent

  1. overshoot says:

    The state is requiring doctors to provide misinformation and it leaves no leeway for incorporating new evidence that may appear.

    Are you sure about that last part?

    “Ms. Doe, the law requires me to tell you that the ratio of a circle’s circumference to its diameter is exactly 3, that babies are delivered by the Stork, and that the Tooth Fairy swaps money for baby teeth. That said, recent research also has suggested that the ratio may be a bit greater than that dictated by statute, sex may play a part in the appearance of babies, and there may not be a Tooth Fairy.”

    The second part would, to all appearances, be a pure case of First Amendment speech (never mind that it’s in a privileged context.) The precedent on that was set more than 40 years ago when the USSC overturned State laws prohibiting MDs from telling their patients about contraceptive options.

  2. Bald Ape says:

    Or, how about,

    “Ms. Smith, I’m about to read a series of biased and inaccurate statements written by politicians. When I’m done reading, you’ll need to sign a consent form acknowledging that I read them to you. Meanwhile, here’s some headphones playing some soothing nature sounds; you are free to wear these and turn the volume to any level while I read.”

  3. David Gorski says:

    I don’t think anyone really likes the idea of abortions: most people who accept abortions see them as the lesser of two evils.

    Actually, there are some who view abortion as a moral good. Personally, I consider this argument to be unconvincing. At the very best, abortion is a morally neutral medical procedure. At the very best. Personally, I tend to consider it to be the lesser of two evils in many cases, but still not an absolute good by any stretch of the imagination.

    That being said, I agree with your opposition to this inane and idiotic law 100%. I hope doctors in South Dakota subvert it in the manner suggested by Bald Ape, if doing so doesn’t cause them to wind up in jail. Even so, there are more subtle ways to undermine this horrible law without breaking it. Sometimes adhering to the letter of the law in a contemptuous manner speaks volumes, and this law does deserve nothing but contempt.

    I suppose I should be somewhat relieved that the legislators resisted the temptation to add the highly dubious claim that abortion causes (or at least greatly increases the risk of) breast cancer in the state-mandated “consent.” I suppose the “evidence” (such as it is) for that connection is too dubious and weak even for the idiotic legislators who passed this law. Perhaps one day I’ll do a post about the dubious claim that abortions greatly increase the risk of breast cancer. The issue crops up from time to time in my practice.

  4. qetzal says:

    It seems to me that the statement as written is an unconstitutional infringement of doctors’ free speach rights.

    Requiring documented, written disclosure of the medically relevant risks of abortion is one thing. I think it’s absurd to specifically legislate that, but I can at least see how the state might defend such a requirement as constitutional.

    But forcing doctors to say that abortion terminates a “whole, separate, unique, living human being” is another matter. That’s an opinion, not a medical fact, and it’s highly colored by one’s religious beliefs. Requiring docs to say that seems blatantly unconstitutional to me.

    I like Bald Ape’s suggestion, but I really think it would be better for some SD doc to volunteer to be a test case, with support from e.g. Planned Parenthood, and to perform an abortions without following that law. Call the state’s bluff & force them to charge the doc with a crime and/or take action against his license. If the state backs down, the law becomes meaningless. If they do charge him, that’s the perfect opportunity to challenge the law and have it overturned.

    I’d guess that opponents of the law already have plans to do exactly that.

  5. Can’t help but add a couple of probably jumbled points, in my state of hospital-induced sleep deprivation.

    First is an irony similar to the observation that freedom of speech only counts when it includes freedom for speech that “we” hate: there are already many laws in many states that dictate specific practices in medicine. Check out this section of Mass. General Laws for examples:

    What distinguishes those from the South Dakota abortion mess, for the most part, is that reasonable people would not disagree, for example, that “a patient suffering from any form of breast cancer [has a right] to complete information on all alternative treatments which are medically viable” or that “the physician shall inform the patient of the disadvantages and risks associated with breast implantation.” There are other things in the MGL list that are not so reasonable, such as the “at least ten days before” language regarding the breast implant thing, or the utterly misleading requirements that:

    “Every maternity patient, at the time of pre-admission, shall receive complete information from an admitting hospital on its annual rate of primary caesarian sections, annual rate of repeat caesarian sections, annual rate of total caesarian sections, annual percentage of women who have had a caesarian section who have had a subsequent successful vaginal birth, annual percentage of deliveries in birthing rooms and labor-delivery-recovery or labor-delivery-recovery-postpartum rooms, annual percentage of deliveries by certified nurse-midwives, annual percentage which were continuously externally monitored only, annual percentage which were continuously internally monitored only, annual percentage which were monitored both internally and externally, annual percentages utilizing intravenous, inductions, augmentation, forceps, episiotomies, spinals, epidurals and general anesthesia, and its annual percentage of women breast-feeding upon discharge from said hospital.”

    Regarding the uncontroversial stuff, why make into law that which MDs and hospitals should be doing anyway? (A: because at some point there was at least a perception, voiced loudly enough to be heard by a politician, that MDs or hospitals were not doing them; or, in the case of the maternity stuff, a substantial anti-“medicalization” culture out there that has made huge inroads into public perceptions of modern labor and delivery practices–Storkdok?). Whether we agree with each particular or not, a good argument can be made that they are all examples of inappropriate “intrusion[s] by the state into the doctor-patient relationship.” Yet if I were a patient who felt he’d been wronged by whatever events led to such laws, I might just lobby for legislative remedies, too. Such is the messy nature of our democracy, but Winston Churchill’s words still ring true.

    Second: for the record, I am one who considers abortion to be morally neutral, other than that its prevention by contraception is preferred because it is less costly and probably slightly safer. The unfettered availability of abortion is certainly a moral good. On the other hand (here comes messy democracy again), Roe v. Wade was, in my opinion, a regrettable and wrong decision. Why? In short, because there ain’t no way to wring that “right” out of the US constitution, and in a democracy I must respect, to a point, others’ beliefs. It shoulda been done by popular vote, just as it was in the process of being done at the time (already legal in NY and maybe one of two others, and Canada I believe; most “blue” states would have followed soon, arrangements could have been made for transportation from red states—think: Ireland), and we would have avoided two generations of Roe v Wade-related right-wing mania, including murders of MDs and probably a lot more crap, maybe even the whole rise of the Robertson-Falwell Religious Right cabal, who knows? I won’t respond to angry objections; I know them already and I’ll admit they have some validity. But I’ll make one more point, for those who don’t understand US politics: the religious right is far more angry about legal abortion having been forced upon every state in the country by non-legislative fiat than it is about abortion per se. Democracy is messy.

  6. DLC says:

    Uh, okay. so Doctor has to actually read all that stuff ?
    I have to agree with Bald Ape’s idea. “Here, borrow my mp3 player for a few minutes while I read some meaningless drivel into this oxygen mask. “

  7. weing says:

    Can a doctor just make a recording and play it for the patient?

  8. tarran says:

    I would argue that this sort of thing is inevitable in the U.S. In republics with representative legislatures, as opposed to democracies, the law is often a case of a vocal minority forcing its will on a largely disinterested majority via the mechanism of having 50% + 1 individual legislators to support it.

    I don’t think one can make a case that this law is unconstitutional. State legislatures are granted wide latitude in regulating medicine. The notion of requiring doctors to inform patients of certain options prior to performing a procedure has, I believe, been challenged in U.S. state courts and under the federal system and not been struck down.

    One could argue, as I do, that the law has no business telling doctors how to practice medicine at all (and yes, I would do away with state licensing of doctors if I had my druthers). Once one accepts that legislators have the legitimate power to tell doctors how to do their business, then one has a difficult time making the case that one set of regulations are within the power of legislators while a similar set of regulations are outside their power.

    To make a consistent, principled, system of law that does not allow this sort of malarky, one must take the state out of the business of regulating medicine (although one does need a system of torts to hold doctors responsible for injuries they cause though obvious or blatant malpractice).

    Incidentally, Churchill’s famous line about Democracy had, I think, more to do with his power as a demagogue and the adroit way he used the masses to acquire power than any insight. I agree wholeheartedly with the conclusion of this article:

    With his lack of principles and scruples, Churchill was involved in one way or another in nearly every disaster that befell the 20th century. He helped destroy laissez-faire liberalism, he played a role in the Crash of 1929, he helped start WWI, and by bringing in America to help, prolonged the war and created the conditions for the rise of Nazism, prolonged WWII, laid the groundwork for Soviet domination, helped involve America in a cold war with Russia, and pioneered in the development of total war and undermining western civilized standards.

  9. Fifi says:

    Abortion has been legal in Canadian hospitals and clinics based purely on a woman’s choice since 1988 (and legallly available in hospitals one the “yes” of a committee since 1969, but it took years of battles and illegal abortion clinics before all women had the right to choose for themselves). Dr Morgentaler received the Order of Canada for his work last year.

  10. wertys says:

    Without enforcement by videotaping all consults associated with the procedure, this is a pointless and foolish law. Such laws, whether they relate to pedestrian crossings, tax returns or doctor’s practices are usually ignored by those with common sense. They usually cannot be successfully prosecuted even if the woman who had the abortion subsequently complains, as there is no proof beyond reasonable doubt (it is presumably a criminal offence) that it was not done.

    Comes down to the MDs notes vs the woman’s recollections, and if the notes say it was done there can be no proof beyond reasonable doubt.

    It’s just more stupid red tape for those who take such things seriously. On a more abstract level though, it is truly the thin end of the pineapple, as you could easily imagine a case where a Dr is held legally responsible for not fully ‘informing’ a patient that there were ‘natural and holistic’ alternatives to, say, chemotherapy. This could end up with a script about ‘health freedom’. The breast nazis could fairly easily do the same by mandating all birthing attendants to give a sermon about the absolute imperative to breast feed above all other parenting decisions, although the science goes back and forth.

    Once again, glad I live in Australia, not South Dakota…

  11. overshoot says:

    I don’t think one can make a case that this law is unconstitutional.

    Compelled commercial speech is, in some circumstances, legal.

    However, bans against physician-patient speech were tested long ago and the precedent is very, very directly on point. IANAL and all that but I really don’t see this one getting past the first review if SD charges a physician for telling a patient that the “Abortion Miranda Warning” is political BS and contrary to medical fact.

    NB: The Supreme Court in Griswold v. Connecticut cited First Amendment grounds for striking down the Connecticut law against providing contraceptives or contraceptive information.

  12. DBonez5150 says:

    Instead of this being an informational and required reading for doctors, is it possibly an open door for religious doctors to harangue patients mercilessly trying to persuade them away? If the woman leaves and later complains she was attacked, the religious doctor can simply say he was following state law. Just a thought.

  13. David Gorski says:

    Comes down to the MDs notes vs the woman’s recollections, and if the notes say it was done there can be no proof beyond reasonable doubt.

    But if there is no record of a signed form that the woman signed to acknowledge that the reading was, in fact, done, then in the eyes of the law it wasn’t done. It’s just like informed consent. If it wasn’t documented properly, it wasn’t done.

  14. Calli Arcale says:

    So, just as with the mountain of paperwork that must be signed (with each page initialed) before getting a mortgage, all the law really requires is that the doctor get the patient to sign a piece of paper with this language on it. I agree that this law will be quickly bypassed by providers.

    From the OP:
    “If anything, this law may just increase the emotional suffering of patients who have already had to make a very difficult decision.”

    That might actually be desirable, at least from the perspective of those who wrote this. They view abortion as murder, so self-righteous haranguing of the mother would be perfectly justified in their minds. This is indeed exactly like ID — an agenda-driven means of sneakily getting a particular goal accomplished under the guise of “freedom” and “information” and “giving people all of the facts”. It disgusts me.

    Abortions should be safe, legal, and rare. This law will not accomplish that, nor will any law or other effort which attempts to prevent abortion by annoying those seeking one.

  15. Skeptic says:

    Hmm…if the proponents of “informed consent” are really interested in facts then patients would also need to be informed of the possible harms of actually brining the pregnancy to term, including sever postpartum depression and the fact that brining the fetus to term is more likely to kill them than an abortion…

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