Rebecca Dresser · September 2008
76 GEO. WASH. L. REV. 1358 (2008)
In Gonzales v. Carhart, the Supreme Court upheld the constitutionality of the Partial-Birth Abortion Ban Act of 2003, a federal law punishing physicians who intentionally perform a specific abortion procedure. In this Article, I focus on what Gonzales v. Carhart had to say about the pregnant woman’s choice to have an abortion. I analyze Gonzalesand other legal developments that undermine women’s autonomy and ability to make an informed decision about this medical procedure.
Legislatures create, and courts approve, informed consent requirements for abortion that deviate from those applied in other medical situations. Legal decisionmakers offer two justifications for treating abortion differently. First is the state’s interest in protecting potential human life—an interest that supports government efforts to discourage women from having abortions. Second is the state’s interest in promoting women’s autonomy and psychological well-being. Women facing abortion choices need special safeguards, it is claimed, to protect them from misunderstanding the nature and consequences of their decision and from the regret that might come from having an abortion without understanding important facts about the intervention. But the special-protection rationale imputes to women a psychological vulnerability that lacks evidentiary support. Moreover, the special-protection rationale is sometimes invoked to support measures that diminish, rather than enhance, women’s ability to make informed choices about abortion. Indeed, in Gonzales, the special-protection rationale became the basis for denying women the opportunity to choose an abortion procedure altogether.
I conclude here that certain distinct informed consent requirements for abortion may be defensible because potential human life is involved, but I reject the claim that women considering abortion are in need of greater protection than are patients making other kinds of serious medical decisions.
