The University of Maine DigitalCommons@UMaine Electronic Theses and Dissertations Fogler Library 5-2015 Informed Consent, Abortion, and Reproductive Autonomy Heather Dawn Lakey Follow this and additional works at: http://digitalcommons.library.umaine.edu/etd Part of the Feminist Philosophy Commons, and the Women's Studies Commons Recommended Citation Lakey, Heather Dawn, "Informed Consent, Abortion, and Reproductive Autonomy" (2015). Electronic Theses and Dissertations. 2311. http://digitalcommons.library.umaine.edu/etd/2311 This Open-Access Dissertation is brought to you for free and open access by DigitalCommons@UMaine. It has been accepted for inclusion in Electronic Theses and Dissertations by an authorized administrator of DigitalCommons@UMaine. INFORMED CONSENT, ABORTION, AND REPRODUCTIVE AUTONOMY By Heather Dawn Lakey B.A. College of the Atlantic, 2000 M.Phil. College of the Atlantic, 2005 M.A. University of Oregon, 2007 A DISSERTATION Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy (Interdisciplinary in Women’s, Gender, and Sexuality Studies and Philosophy) The Graduate School The University of Maine May 2015 Advisory Committee: Jessica P. Miller, Associate Professor of Philosophy, Advisor Kirsten Jacobson, Associate Professor of Philosophy Ann Schonberger, Professor Emerita, Women’s, Gender and Sexuality Studies Nathan Stormer, Professor of Communication and Journalism John Visvader, Professor of Philosophy DISSERTATION ACCEPTANCE STATEMENT On behalf of the Graduate Committee for Heather Dawn Lakey I affirm that this manuscript is the final and accepted dissertation. Signatures of all committee members are on file with the Graduate School at the University of Maine, 42 Stodder Hall, Orono, Maine. Dr. Jessica P. Miller, Associate Professor of Philosophy Date ! ii Copyright 2015 Heather Dawn Lakey All Rights Reserved ! iii LIBRARY RIGHTS STATEMENT In presenting this dissertation in partial fulfillment of the requirements for an advanced degree at The University of Maine, I agree that the Library shall make it freely available for inspection. I further agree that permission for "fair use" copying of this dissertation for scholarly purposes may be granted by the Librarian. It is understood that any copying or publication of this dissertation for financial gain shall not be allowed without my written permission. Signature: Date: ! INFORMED CONSENT, ABORTION, AND REPRODUCTIVE AUTONOMY By Heather Dawn Lakey Dissertation Advisor: Dr. Jessica P. Miller An Abstract of the Dissertation Presented in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy (Interdisciplinary in Women’s, Gender, and Sexuality Studies and Philosophy) May 2015 Abortion is an inimitable experience that poses a host of unique ethical and philosophical questions not generated by other medical procedures. In spite of a massive amount of literature discussing abortion, there is little theoretical work examining the relationship between abortion and informed consent. This is a problematic oversight because informed consent plays a prominent role in contemporary abortion practices. In an effort to address this lacuna, my dissertation explores the concept of informed consent as it functions within abortion discourse. Informed consent and abortion are both interdisciplinary terms and thus a robust critique of their intersection requires an interdisciplinary analysis. Therefore, I critically track the concept of informed consent across four unique discourses: traditional informed consent literature, Supreme Court rulings on abortion regulations, state-sponsored informed consent materials distributed to women seeking an abortion, and women’s first- person narratives. As a contribution to feminist and bioethics scholarship, I argue that informed consent is a deeply inadequate concept in the context of abortion. Importantly, however, the reasons for this inadequacy change relative to the discourse in question. ! Thus, Chapters One, Two, Three, and Four each take as their focus a distinct discursive engagement of informed consent. In Chapter Five, I confront a series of questions generated by my interdisciplinary survey. In bridging the gaps between informed consent theory and abortion discourse, I demonstrate two important points. First, I illustrate how popular articulations of informed consent are ill-equipped to address the moral and medical issues particular to abortion. Secondly, I illuminate cases where the rhetoric of informed consent is, in fact, being used to undermine and jeopardize women’s reproductive autonomy. This dissertation concludes with a plea for a revised conception of informed consent within the abortion context, one that deploys the subjective standard of disclosure and recognizes the value of flexible dialogue between the woman and her abortion provider. ! TABLE OF CONTENTS INTRODUCTION AND OVERVIEW…………………………………………………...1 Synopsis of Chapter One……………………………………………………….....4 Synopsis of Chapter Two…………………………………………………………6 Synopsis of Chapter Three……………………………………………………......8 Synopsis of Chapter Four…………………………………………………………9 Synopsis of Chapter Five………………………………………………………...11 CHAPTER ONE: A CRITICAL REVIEW OF INFORMED CONSENT........................14 A Brief History of Informed Consent…………………………………………....17 Informed Consent in Judicial Discourse…………………………………………20 Informed Consent in Biomedical Ethics…………………………………………31 Informed Consent and Shared Decision Making………………………………...42 Conclusion to Chapter One………………………………………………………53 CHAPTER TWO: THE SUPREME COURT, INFORMED CONSENT, AND ABORTION……………………………………………………………………………...55 Roe v. Wade and Abortion Decision Making……………………………………...57 Informed Consent and the Danforth Decision…………………………………......63 Informed Consent and the Akron and Thornburgh Decisions……………………..69 Informed Consent and the Casey Decision………………………………………...74 Conclusion to Chapter Two………………………………………………………..83 iv CHAPTER THREE: “INFORMED CONSENT” IN THE CLINICAL CONTEXT……85 Strategy One: Flawed and Discredited Research Studies......................................87 Strategy Two: Embellishing the Reduction……………………………………...95 Strategy Three: Fetal Constructions………………………………………….....107 Conclusion to Chapter Three…………………………………………………...117 CHAPTER FOUR: “INFORMED CONSENT” AND WOMEN’S LIVES…………...120 Current Research Exploring “Informed Consent” Laws……………………….122 The Story of Carolyn Jones……………………………………………………..129 Relational Autonomy, Intersectionality, and “Informed Consent” Laws……....136 Conclusion to Chapter Four…………………………………………………….144 CHAPTER FIVE: CONCLUDING QUESTIONS AND SPECULATIONS………….145 Resistance and Insurgence……………………………………………………...146 Professional Medical Associations Respond…………………………………...157 Revisions of Informed Consent………………………………………………...168 ENDNOTES…………………………………………………………………………....181 REFERENCES………………………………………………………………………....207 BIOGRAPHY OF THE AUTHOR.................................................................................237 v INTRODUCTION AND OVERVIEW “Might it not be necessary to do two things at once: to emphasize both the permanent value of the philosophy of rights, and, simultaneously, the inadequacy, the limits of the breakthrough it represented?” Helene Cixous (1993, p.202) Although abortion is shrouded in stigma and controversy, it is a common procedure. According to the Guttmacher Institute, one half of all pregnancies in the United States are unintended (Finer & Zolna, 2014). Of these, forty percent will end in abortion (Finer & Zolna, 2014). In 2011, over a million women had abortions in the United States alone (Jones & Jerman, 2014). Given abortion rates in 2008, three in ten women will have had an abortion by the age of forty-five (Jones & Kavanaugh, 2011).1 Abortion has been legal in the United States since the Supreme Court’s landmark 1973 ruling in Roe v. Wade. Over the last forty years, however, access to abortion has diminished as states have found creative ways to regulate and restrict the abortion procedure. In the first half of 2011, state legislators introduced a record number of antiabortion bills. In nineteen states alone, eighty antiabortion laws ranging from mandatory counseling and waiting periods to gestational laws and bans on insurance coverage were passed, a legislative testimony to the incremental successes of the antiabortion campaign (Guttmacher Institute, July 13, 2011). According to the Guttmacher Institute (July, 2014), at least half of the states have now passed some form of legislative restriction on abortion. 1 Of the many restrictive regulations imposed by antiabortionists in recent years, one of the most troubling comes in the form of “informed consent” laws. In traditional form, informed consent is at once a legal requirement that governs medical decision- making and an ethical ideal that aims to enhance and protect patient autonomy in the clinical and medical-research settings. An emancipatory concept designed to service individual rights, informed consent is a child of liberal humanist thought and its concomitant ideals of freedom and equality. Despite its liberatory origins, however, informed consent practices are increasingly being used to subvert and undermine women’s reproductive autonomy.2 More specifically, antiabortion politicians are infiltrating the informed consent process to further an antiabortion agenda and, consequently, a number of states have passed laws that require healthcare providers to share misleading and fraudulent information to women seeking an abortion.3 According to the