by Clíodhna Ní Chéileachair
The Supreme Court is currently considering National Institute of Family and Life Advocates (NIFLA) v. Becerra, a challenge by abortion opponents to a California law that requires unlicensed centers in the state to inform potential patients about whether the center is medically licensed or not, and that requires clinics offering pregnancy-based care to give accurate information about the availability of low cost, or free government contraceptive and abortion care. The law is an attempt to target clinics which purport to offer comprehensive pre-natal care and pregnancy counselling, while in actuality pursuing an agenda that typically discourages women from availing of abortion care through biased counselling, false descriptions of the risks of abortions and descriptions of foetal development that are inaccurate. The number of these clinics nationwide is estimated at 4,000 – far outstripping the number of actual abortion clinics in the US – and are frequently taxpayer funded. NIFLA claims that the law targets the organisation’s free speech rights and unfairly targets the political beliefs of clinic owners and operators.
Front and center is the question of what information pregnant women must receive from care providers. NIFLA frame the Reproductive FACT Act as a deliberate decision to force anti-abortion activists to violate their consciences and advise pregnant women on a choice they consider abhorrent – ‘Should the government be able to force a pregnancy center — that exists solely to further its pro-life mission — to tell women where they can get an abortion?’. In reality, the real debate occurs a step prior to this contention. There is clearly no issue where pregnant women who share the same ethical convictions as an anti-abortion pregnancy center chooses to avail of that service, as opposed to the services of abortion-providers. It’s unclear why the burden of furthering the centers ‘pro-life mission’ should fall on the pregnant women who unwittingly use that center. Even considering the constituency of pregnant women who would choose to attend a pregnancy clinic that won’t advice on termination care, a number of questions remain – it is unclear, for example, why unlicensed ‘pregnancy centers’ should be entitled to the valence of credibility given where there is no law requiring them to disclose their unlicensed status. To the extent that pregnant women attend clinics for medical care and advice, it seems strange to prefer the political convictions of organisations to the meaningful consent of that patient to care, particularly if the information by which a patient can gauge the credentials of a clinic (i.e. whether it is a medical facility at all) isn’t available to her, as a practical matter.
The asymmetry of available information is pronounced even at the point of entry with many fake clinics carrying deliberately misleading names, like ‘A Woman’s Choice Resource Center’, or ‘Options for Women’. The domain names ‘www.prochoice.com’ and ‘www.pregnancycenters.org’ are operated by groups with explicit anti-choice agendas, with drop-down options where women can have pressing questions answered about termination care; under the query ‘How much does abortion cost?’ the supplied response is ‘The ultimate price, your baby’s life, your self esteem and maybe your life’. It is difficult to interpret this as anything but a strategy to dupe vulnerable women into believing inaccurate political advocacy in the guise of medical information.
The false claims made vary wildly; pregnant women are told that having an abortion increases their risk of breast cancer, that it is too late for them to have an abortion, that abortion causes substance abuse, that their risk of suicide will climb by 150% after an abortion (and perhaps most bizarrely their risk of death ‘by accidents’ – as opposed to natural causes – will increase by 82%). In some ways the ‘cultural battle‘ described by NIFLA is an extension of a debate that seems ubiquitous, namely, the degree to which individuals can anticipate that the information they receive is neutral and accurate, as opposed to tied to a particular agenda. The ‘fake news’ paradigm of public engagement differs in some special ways when it comes to healthcare, however. Unlike news consumption, which is often multi-channel, with competing viewpoints reasonably easy to access in the internet-age, medical information, particularly that which is received one-to-one in institutions which hold themselves out as medical clinics is in a special class. Anticipating that pregnant individuals, particularly those experiencing crisis pregnancies, will shop around for care and information seems to stretch expectations of pregnant women, particularly those experiencing crisis pregnancies, in a profoundly unreasonable way.
Beyond this, the degree to which we can demand accurate information depends on the context in which the information operates. The information ‘background’ against which reproductive choices are made is far from neutral, politically speaking. Moral narratives condemning women for having or considering terminations, media narratives depicting abortion choices as fraught and dangerous, and government action restricting reproductive choice operates in a way that dilutes the extent to which neutral information is available, in or out of the doctor’s office – or in this case, the ‘pregnancy center operative’ office. Multiple states now require doctors to inform pregnant women about the possibility of ‘abortion reversal’ in instances where they begin a medical termination and later change their mind by flooding the pregnant woman’s system with progesterone in an attempt to counter the effects of mifeprisotone. There is extremely limited evidence that the practice works, with the grounding case study on the practice sampling only 6 women. Nonetheless, the idea has been latched onto by anti-abortion advocates attempting to corner the medical debate. Scott Lloyd, the Trump administration’s director of the Office of Refugee Resettlement (ORR), raised the prospect last March of administering progesterone to a 17-year-old girl from El Salvador who had entered the US illegally and was being held in ORR custody. In later lawsuits by the ACLU against the ORR, it was revealed that acting director had instructed staff to escort the girl to the emergency room to determine the status of the teenage girl and her ‘unborn child’, and if steps could be taken to preserve the life of both, those steps should be taken.
The repercussions for women who have or seek terminations are not only regulated legally, they are ‘medicalised’ in a partial manner, and socialised through the utilisation of narratives of shame and regret. The invention of ‘post abortion syndrome’ is an instantiation of the same phenomenon, an unrecognized ‘condition’ that abortion rights opponents use to attempt to rebut pro-choice claims in medical discourse. Many crisis pregnancy clinics couch the harms and risks they associate with abortion in social terms, describing the ‘journeys of healing’ that women must embark on after caving to the pressures of abortionists, and describing profound social consequences for having a termination, with one website explaining ‘if you break up with your boyfriend, keep in mind that the man you want to marry will probably need to know you have had an abortion.’
Most principally, informed consent requires accurate information. Biasing the information that pregnant women receive, without repercussions for partisan clinic staff undermines the consent of pregnant women to the medical choices they make – or refrain from making- in a very profound way. Respecting and supporting the medical autonomy of women requires demanding the same medical standards to termination decisions as are applied in other medical contexts.