Lifewatch: A Minor Touch of Genius

Aristotle taught us that no action taken in ignorance was a truly free, or voluntary, action. It seems all the more curious, then, that the party that claims, as its leading principle, the “freedom of choice” on abortion, should set itself so firmly against supplying to pregnant women the most rudimentary information about the surgeries they are choosing.

That resistance has been registered in a steady opposition to all statutes that seek to insure an “informed consent.” All the more remarkably, these provisions on informed consent would not imply any challenge in principle to a “right to an abortion.” Even someone who conceded such a right might nevertheless hold that patients have a right to be informed about the nature and risks of this surgery—as much right as they have to be informed about the risks even of minor surgeries, in re-moving warts or birthmarks. What if we encountered a pregnant teenager who thought that the embryo she was bearing was the equivalent of a wart or tumor? What if it made a difference for her to know when the fetus could swallow or squint or move its fingers? And what if she had not the faintest notion of the risks, or the long-term problems, that may arise from this surgery? Is there some compelling reason for letting her drift into surgery in the haze of this ignorance?

When it comes to the matter of abortion, the screening of information seems to have no parallel in any other surgical procedures: Is there any other procedure in which it is thought important not to inform the patient about the tissue, or the organ-ism, that may be removed from her body? Is there any other situation in which it is thought desirable to conceal from the patient the nature of the procedures that will be employed (whether in injecting a poisonous solution, or slicing up the organism), and the level of risks attending these procedures?

But these items of information have been withheld precisely because any one of them proves enough, on many occasions, to make patients pause and turn away from abortion. Of course, that would not seem to be a problem if the partisans of “choice” were really more concerned with a woman making her own choice, rather than with the substance of what is chosen. And yet, the truth is that they have never been indifferent: Behind “pro-choice” is the conviction that abortion is a positive good, serving the true interests of women, especially if the women happen to be poor, unmarried, or poised at a pivotal moment in their careers. The proponents of “choice,” then, have known all along the choice that is “right.” Whatever brakes the movement to that choice—whatever deflects a woman from choosing something so manifestly in her interest—is something to be resisted. Procedures on informed consent plainly do deflect some women from abortion, and that is why the “pro-life” groups are so persistent in advancing them. But that is also why the pro-choice people are even more adamant in resisting them.

The difference, however, is that the party of abortion has, on its side, a corps of federal judges. Those judges have been quick to pounce on every scheme of “informed consent” if it bears the slightest sign of trying to “lead” the patient: if it tries, that is, to suggest that abortion is less than an altogether wholesome and desirable thing. And that meaning is conveyed if the legislation announces, with an un-seemly explicitness, that the unborn child is indeed a human life.

In the face of this steady opposition from the federal courts, one line of strategy seemed to recommend itself plainly: Why not have an impeccably “non-directive” bill, with no exhortations or preaching? Why not simply ask the pregnant woman what information she herself would wish to have about the state, or development, of the being in her womb? When people wish to avert their gaze, no information need be pressed upon them. It turns out that the legislature in Michigan has passed a bill on informed consent that comes remarkably close to the scheme I have suggested. But the bill is also augmented with some rare touches of genius.

The legislation was brought forth by Senator Jack Welborn and Representative Jesse Dalman, and signed by Governor John Engler. The drafters of the bill had the wit to proclaim, even in the law, that the bill does not seek to be “persuasive” against the choice of an abortion, despite the fact that, under the rulings of the Supreme Court “a state is permitted to enact persuasive measures which favor childbirth over abortion.” The bill requires that each patient receive rather precise information about the stage of her embryo or fetus, as nearly as that stage can be estimated. And yet the bill also allows her to refuse to look at the in-formation. She need not confront pictures, or facts, that she may find unsettling.

The nature of these materials has usually been subject to dispute, and in this instance the “pro-choice” forces were prepared to resist pictures showing blood, or anything that might recruit sympathy for the fetus. But the managers of the bill were aided by Ed Rivet, the Legislative Director of Michigan Right to Life, and they came up with a solution that was inspired: They would simply adopt, as the photographs for this bill, the pictures that were incorporated in that landmark of liberal social policy, the official Michigan program on sex education! The opponents of informed consent had claimed that the right-to-life people were trying to “terrorize” pregnant women. But now, Michigan Right to Life merely brought forth the pictures that had been prescribed, by law, for all children in the public schools, beginning with the sixth grade. Would the party of abortion claim that this model of a liberal curriculum would advance the health of small children but somehow terrorize older women?

As Ed Rivet recalled, the presentation of this scheme had a stunning effect. The opposition was suddenly reduced to random mumbling, and that effect carried through to passage: Any restrictions on abortion can usually elicit a denunciation from the ACLU—joined with the avowal that the legislation will be challenged in the courts. But since the passage of the bill in July, the ACLU has been notably silent. Apparently, the ACLU has still not figured out just how to mount a challenge to this bill. If that is indeed the case, then the pro-life movement might respond quickly to these signs. The legislation in Michigan could be introduced at once in other places. (People who would like to have a copy of the legislation may call the Lansing office of Michigan Right to Life, S 17-485- 6443.)

But on the other hand, my own hunch is that no legislation on informed consent is so moderate that it would be beyond the mischief of federal judges. The judges have been willing to use the slenderest pretext for striking down any regulation that restricts abortion, and now they have a fresh incentive: The advent of Ruth Bader Ginsburg to the Supreme Court promises to “reshuffle the deck.” With Ginsburg reinforcing O’Connor, the majority that sustains abortion might be moved now to conclude that any serious inhibition on the choice of abortion would constitute an “undue burden.”

The legislation contains, also, one provision warning that women might experience “depression, feelings of guilt, sleep disturbance, loss of interest in work or sex….” The judges would readily tag this passage as “tendentious”; its obvious intent is to discourage. But apart from that, Judge Ginsburg can be depended on to raise the issue of “equality”: Why are these procedures spelled out in such fastidious detail for a surgery that is performed only on women? Does the legislature of Michigan show the same concern to establish the informed consent of patients for prostate surgery, or even root canals?

If the judges begin to challenge the law in this way, then the action of abortion will have to move from the States to the national level. A reshuffled Court may be tempted to try out its new temper at the expense of a State legislature, but the amassing of votes in Congress would show political currents at work in the country, and those movements would make an impression on the judges.

In this respect, our current situation may be revealed in a recent decision of the Supreme Court of Colorado, which offered the judicial equivalent of a light held to the retina: a decision on homosexuality that offers a scary look into the minds of judges. That decision discloses something about the political landscape at this moment, but it also suggests the lines of a strategy to resist and outflank. But that news from an exotic place we reserve for next month.

Hadley Alums is Ney Professor of Jurisprudence at Amherst College.

 

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Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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