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Misinformed Consent: How the Supreme Court Bolsters Paternalistic Medicine

The Supreme Court this week struck down California’s Reproductive FACT Act in National Institute of Family and Life Advocates v. Becerra, which required Crisis Pregnancy Centers (CPC) to inform their prospects that they are not medical providers and post a sign informing them that the state provides free or low cost access to prenatal and preventative medicine, including abortion.

The law was passed in reaction to what California saw as deceptive and harmful tactics employed by the CPCs in order to mislead women seeking abortions to come to them instead. These clinics are often funded by the state and federal government. While many of these centers offer some medical services, importantly, they are not healthcare providers and usually do not have a doctor on the premises. This means that not only are the women who go to them at risk of receiving faulty care, the CPCs do not face the same consequences a doctor would for misleading their patients.

This decision comes off a number of decisions that allowed state governments to limit abortion, particularly in Planned Parenthood v. Casey which allowed for laws that forced doctors to disclose the risks of abortion in the interests of informed consent. However, states often force doctors to tell their patients about risks that either can’t be avoided (because they are inherent to the pregnancy), or simply require the doctor to give false information. This sets up a situation where women seeking abortion often find themselves in fake abortion centers, which gives them false or misleading information, which will then get reinforced by an actual doctor being compelled by the state.

In the past century, there has been a marked shift in medical ethics concerning healthcare decisions from paternalism to a paradigm of informed choice. This, in turn, has shaped patient expectations about how their doctor will treat them. Patients expect their physician to truthfully provide them all relevant information about their condition, along with their best medical judgment. There is some paternalism inherent to medicine, in that patientxs rely on their physicians not to overwhelm them with irrelevant information, or lie to them in order to shape their medical decisions. This relationship likely contributes heavily to the fact that doctors are among the most trusted professionals in America.

The pro-life movement and many state governments have weaponized that trust, and are using it to keep women from having abortions, or receiving preventative medicine, even when it is in their own self-defined interest. For all the faults of paternalistic medicine, it sought to further the interests of the patient, in principle if not in practice. These restrictions on abortion plainly do not. Doctors can be required to give these warnings regardless of context, including telling the mother their “unborn child” can feel pain at twenty weeks even when continuing the pregnancy can threaten the mother’s life.

Under Planned Parenthood v. Casey states are allowed to provide materials that persuade women not to have an abortion. Abortion is a difficult decision for anyone to make, on both a personal and ethical level, and there’s good reason to allow women to weigh all their options so they can make the best decision for themselves. But that’s not the situation we have. Instead, states have reinforced religiously-motivated paternalism, lying to women in order make choices for them.

While NIFLA v. Becerra didn’t explicitly endorse this form of medical paternalism, the SCOTUS decision has bolstered a system designed to prevent women from making their own choices.

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