Recently, there have been some very worrisome developments regarding legislation of reproductive rights in states such as Oklahoma, Texas and North Carolina, among others. The state of Oklahoma, for example, has a new law according to which, prior to undergoing an abortion, a woman must view an ultrasound of the fetus and hear a description of its status, organs and present activity; similar laws have already been sanctioned in the other states just mentioned. Here is an excerpt of the official formulation of the Oklahoma law:
B. In order for the woman to make an informed decision, at least one (1) hour prior to a woman having any part of an abortion performed or induced, and prior to the administration of any anesthesia or medication in preparation for the abortion on the woman, the physician who is to perform or induce the abortion, or the certified technician working in conjunction with the physician, shall:
1. Perform an obstetric ultrasound on the pregnant woman, using either a vaginal transducer or an abdominal transducer, whichever would display the embryo or fetus more clearly;
2. Provide a simultaneous explanation of what the ultrasound is depicting;
3. Display the ultrasound images so that the pregnant woman may view them;
4. Provide a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable […]
Notice that the physician is required by law to go through this process before performing the abortion; failure to do so will make him/her subject to harsh penalties. It does not take a lot of brain power to realize that what is construed here as ‘informed decision’ is in fact yet another maneuver to prevent abortions from taking place by ‘anthropomorphizing’ the fetus (I’m a little hesitant to use the term here, but at least according to some accounts, the status of the fetus as a human being at the early stages of a pregnancy is debatable; but even this particular debate is besides the point). Moreover, it goes without saying (but deserves to be said!) that it is of striking cruelty to submit a woman to this additional layer of emotional charge at such a difficult moment (note the 'whichever would display the embryo or fetus more clearly' clause!). Notice also that this law allows for no exceptions, not even in cases involving rape or endangerment of the mother’s health.
The Center for Reproductive Rights has been at the forefront of legal campaigns to promote reproductive health and rights worldwide, and is now challenging the (state) constitutionality of this law. Rebecca Kukla (a friend of this blog) has been hired as expert witness in her capacity of philosopher and bioethicist. She will argue that the notion of ‘informed consent’ underlying this law, which is supposed to provide its official justification, is in fact entirely distorted and at odds with the physicians’ ability to perform their jobs ethically.
Rebecca was kind enough to share an abstract of her deposition with me, and among many incisive remarks, she notices that, by analogy, this understanding of ‘informed consent’ would also require a woman to watch videos on the difficulties of single parenting or of parenting with a low income prior to being given an abortion, which would be thoroughly inappropriate (just as it is inappropriate to describe details of the status of the fetus and to make her view the ultrasound). More generally, Rebecca will argue that ‘informed consent’ does not require that a person be in possession of absolutely all information. In fact, the very opposite seems to be the case: it would seem that genuine informed consent and rational decision-making is in fact hampered by excessive information. This claim could certainly be corroborated by studies in the psychology of decision-making (the data mentioned in Bishop and Trout’s Epistemology and the Psychology of Human Judgment comes to mind, for example), suggesting that what is essential for rational decision-making is that an agent be aware of the crucial and usable information alone, given that additional information can have a negative, distractive effect. In this particular case, viewing the ultrasound does not seem to add any usable medical information, and is likely to be the kind of information that influences negatively the process of rational decision-making.
With experts such as Rebecca Kukla and other academics, the challenge seems solidly construed, and we can only hope that it will be successful. If it succeeds, it will constitute an important step towards fairer reproductive rights for a large number of women, and towards better working conditions for the practitioners assisting them. (Thanks to Rebecca for sharing the material and commenting on a previous draft of this post.)
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