Abortion, Circumcision, and the Politics of Documenting Informed Consent

Last week, as the New York Times reported, a fight over documenting informed consent to a particular Jewish circumcision ritual is brewing. To quote from the article:

The city Board of Health passed a regulation in September that required written parental consent before a ritual circumcision could be done. In the procedure, common among ultra-Orthodox Jews, the person performing the circumcision uses his mouth to remove blood from the incision. The oral contact, known in Hebrew as metzitzah b’peh, is considered dangerous by public health officials, because of the possibility of spreading diseases, specifically herpes. Failure to comply with the regulation could result in warnings and fines.

To be clear the New York City Board of Health has NOT outlawed the procedure, despite its herpes risk. Instead it only requires that written parental consent be given. My first reaction, and I suppose the reaction of many, is “what could possibly be wrong with that?”  On reflection, though, I began wondering what might be learned by juxtaposing this requirement against another one that is trying to influence parental choice…laws on informing women about the risks of abortion and requiring the offering or viewing of an sonogram.

As John Robertson, among others, has recently detailed:

Laws already exist in nineteen states that require that a woman, in addition to being informed of fetal gestational age, medical and psy- chological risks of abortion, and child support and adoption alterna- tives, be offered the chance to view an ultrasound of the fetus. These laws appear to be constitutional—they inform the woman of the opportunity to get more information about the fetus if she chooses. By leaving the choice to her, they respect her autonomy and create no undue burden. Still, it is no secret that they are motivated by a sentiment that if women are reminded that the fetus can be seen on ultrasound and they choose to see it, they may hesitate in going forward with the abortion because of their “natural” maternal feelings.

Oklahoma and Texas now require that women not only be informed that a sonogram may be viewed, but also that the sonogram image be displayed in a manner so that the pregnant woman may view it and simultaneously receive “a verbal explanation of the results of the sonogram images, including a medical description of the di- mensions of the embryo or fetus, the presence of cardiac activity, and the presence of external and internal organs.”

Although the woman is not required to view the image, the doctor or sonographer must still provide a verbal description of anatomical features. Indeed, Texas goes further and requires that she listen to the fetus’s heartbeat or a verbal description of it. In Oklahoma, the viewing/description of the sonogram must occur at least two hours before the abortion; in Texas, it must occur twenty-four hours be- fore.

Pro-choice advocates argue that forced viewing/hearing laws are less about ensuring fully informed consent to abortion and more about forcing women to hear, in a particularly vivid way, the State’s normative position on fetal life. They believe that mandated view- ing/hearing will change few minds but will create more stress or annoyance at a time that is already stressful.

John then goes on to examine these laws under Casey, but I am more interested in why many of the readers (I presume) have very divergent views of the circumcision and abortion cases.

Is it just that their priors are against restricting abortions but pro-restricting/discouraging this particular circumcision ritual? Perhaps, but then what to say to those who have the opposite priors? Is it about the accuracy of the information? The sonograms seem accurate if aimed at our emotions. If New York mandated that parents be shown a video regarding the lives of the babies infected with herpes from the ritual, would that be too far?

Now, one might argue that the New York law is different because it does not require information be given on the circumcision generally, but on one specific form of the blood removal that is particularly dangerous and it wants to dissuade. Fair enough, but I am not sure if that lessens the problem. Suppose a parallel law that tried to dissuade women from potential forms of abortion by giving them information about the way it caused more pain to the fetus. Would we allow that? For example, if instead of outlawing the so-called “partial birth abortion” procedure at issue in Carhart the state had made women watch a video that suggested they were (to imagine the most gruesome way of putting/showing it) they were engaging in fetal decapitation? Again, I am not so much interested in the relevant First Amendment doctrinal analysis fore present purposes. I am more interested in the more basic questions of whether this would be like or unlike what New York has proposed to do with the circumcision ritual. I have no dog in this fight, I am just fascinated by how uncomfortable the comparison makes me, and the way it destabilizes some of my priors. What do you think?

I. Glenn Cohen

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

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