OPINION | S.D. Abortion Script Threatens Doctor-Patient Relationship, NEJM Opinion Piece Says
[Nov. 20, 2008]

A South Dakota law that requires a physician to tell a woman seeking an abortion that the procedure "will terminate the life of a whole, separate, unique, living human being" with whom she has an "existing relationship" signals "a new step in states' efforts to restrict abortion," Zita Lazzarini of the University of Connecticut Health Center and Johns Hopkins Bloomberg School of Hygiene and Public Health writes in the New England Journal of Medicine. According to Lazzarini, the law -- which went into effect in July -- "has import far beyond the borders of South Dakota," particularly because it calls physicians' First Amendment rights into question.

Although the 1992 Supreme Court ruling Planned Parenthood v. Casey established that states can require physicians to give pregnant women information that "a reasonable patient could consider material to the decision of whether or not to undergo the abortion," the 1977 ruling in Wooley v. Maynard established that when "required speech serves the state's ideological interests, the state's authority cannot 'outweigh an individual's First Amendment right to avoid becoming the courier for such information,'" Lazzarini writes. She adds that "although state legislatures have substantial discretion to define terms used in their laws" -- such as defining a fetus as a human being in biologic terms -- "they cannot merely use the iteration of definitions to cloak religious, philosophical or metaphysical language in statutory garments and call it 'scientific' or 'biologic.'"

With regard to the sections of the law that refer to a woman's "relationship" with the fetus, Lazzarini writes that "the protections that such a relationship enjoys, and the rights 'terminated' by having an abortion, are so vague as to defy explanation." She asks, "Is a woman who has an abortion violating constitutionally protected rights of her fetus? Could she be punished for doing so? Since physicians must certify that women understand the mandated information, could a physician who cannot correctly explain the meaning of the 'relationship' be prosecuted?" Lazzarini continues that because neither the U.S. or South Dakota constitutions explicitly mention such a relationship -- and because no constitutions, statutes or legal cases indicate that abortion terminates a woman's "constitutional rights" -- the "language about 'relationships' and the termination of 'rights' can reasonably be interpreted only as intending to intimidate pregnant women with vaguely described and legal-sounding consequences." Furthermore, the law's requirement that physicians certify that the woman has received the information and record all questions and answers in the patient's medical record "seriously discourages physicians from providing alternative or more accurate information by inducing fear that" they would be unable to "certify" a woman's understanding or expose themselves to liability. In addition, because women must sign each page of the document, they have "no latitude to decide for themselves how much or little detail they wish to have about the procedure," Lazzarini adds. These requirements thus "will have a chilling effect on open discussions between physicians and patients," she writes.

Because the information in the consent script includes misleading information on purported increased risks of physiological distress, depression and suicide associated with abortion, the "statute forces physicians to violate their obligation to solicit truly informed consent -- and thereby detracts from the essential trust between patients and their physicians," Lazzarini writes. She continues, "By assuming that women are incapable of making decisions about abortion as competent adults in consultation with their physicians," laws such as the South Dakota statute "tend to reduce women to their reproductive capacity and suggest that they need the paternalistic protection of legislatures and society." The law also threatens the physician-patient relationship in areas other than abortion, including contraception, end-of-life issues and stem cell-based therapies, Lazzarini says (Lazzarini, NEJM, 11/20).





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