Government-Scripted Consent: When Medical Ethics and Law Collide

Informed consent lies at the heart of the physician-patient relationship. It is grounded in the principle of respect for persons, which affirms an individual's consequent right to autonomous decision-making. Informed consent requires voluntariness—freedom from coercion, undue influence, or bias—on the patient's part, and accurate, good faith disclosure of information by the physician. These are minimal but essential conditions by which the patient as a person and her exercise of autonomy are respected. The twin tenets of voluntariness and adequate disclosure are not independent silos, but rather mutually dependent fundamentals for the exercise of individual choice. The selection of data to be shared, the values that frame the facts, and the emotional perspective by which they are proffered all contribute to a context that either animates or degrades a person's autonomy.

A recently enacted policy in South Dakota threatens to abrogate the process described above; a consent discussion grounded in dogmatic and uncompromising ideological speech is now the de jure standard in that state. Several articles have focused the medical community's attention on these newly implemented requirements, which include a script that must be given to a woman prior to abortions.¹ The script asserts, among other things, that the fetus is "a whole, separate, unique, living human being." It also requires the physician to give the patient a description of all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including depression and related psychological distress and increased risk of suicidal ideation and suicide—none of which has been scientifically substantiated. In addition, a statement is required that sets forth an accurate rate of deaths due to abortions, including all deaths in which the abortion procedure was a significant contributing factor, and all other known medical risks to the physical health of the woman, including the risk of infection, hemorrhage, danger to subsequent pregnancies, and infertility. The probable gestational age of the fetus at the time the abortion is to be performed and a scientifically accurate statement describing the development of the fetus at that stage must be shared as well.

This litany of required "facts" includes many that are untrue. It replaces the concept of informed consent as a discussion of risks, benefits, and alternatives with a coercive process focusing almost exclusively on risks, misinformation, and implied governmental opprobrium. By mandating "ideological speech" on the part of physicians, use of the legislated script forces them to commit an untenable ethical and professional wrong: deceiving their patients by providing false information and withholding empirically derived, evidence-based clinical data.²

Legal arguments against this approach and its infringement on the first amendment rights of physicians continue to be eloquently sounded.³ First amendment protections for scientific speech should inform, if not govern, the disclosure elements of the informed consent process. The failure of appellate courts to prevent such infringements on patient's and physician's rights has resulted in situations, de facto and de jure, in which medical ethics and the law are in direct conflict.⁴

The American College of Obstetricians and Gynecologists' (ACOG) Committee on Ethics has noted that "free consent is an intentional and voluntary choice that authorizes someone else to act in certain ways . . . Consenting freely is incompatible with [a patient] being coerced or unwillingly pressured by forces beyond herself. It involves the ability to choose among options and to select a course other than what may be recommended."⁵ Though physicians' beliefs may be legitimate bases for recommendations, physicians are expected to avoid manipulation or coercion. However, potential for undue bias exists even when physicians frame their counseling carefully, since their choice of words, of emphasis, and even of body language unwittingly transmits bias.

Legislated counseling is even more fraught with the risk of coercion than physician counseling. While manipulation by physicians is often subtle, unconscious, and unintentional, the South Dakota script is an overt attempt to dissuade patients from seeking a particular course of action. Imagine if another state or nation with a conflicting ideology proposed...