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Sherry F. Colb

An Oklahoma Abortion Law Raises New and Different Rights Questions


Wednesday, July 21, 2010

Earlier this year, the Oklahoma legislature passed several abortion measures, a number of which required overriding the Governor's veto. One of the laws prevents a patient from suing her doctor for failing to reveal the presence of a fetal abnormality.

The structure of this law is different in kind from that of other abortion restrictions, and it accordingly calls for a separate analysis. I will here analyze how the Oklahoma law differs from garden-variety abortion restrictions and whether we ought therefore to view it in a different light.

How Most Abortion Restrictions Operate

Existing abortion restrictions generally make it more difficult for a pregnant woman who wants an abortion to get one in the time, place, and manner of her choosing. Waiting periods may require a woman who can ill-afford it to take several days off from work to visit a clinic repeatedly, before her provider may permissibly terminate her pregnancy. Mandatory ultrasounds and fetal-information lectures may cause emotional distress that many women would prefer to avoid. Gestational-stage deadlines (whether at viability or, as a Nebraska law that I discussed in another column provides, at several weeks prior to viability) prohibit abortion outright after a certain point, unless the woman can satisfy one of a narrow set of criteria, including a pregnancy that poses a threat to her life.

Method restrictions (e.g., the federal "Partial-Birth Abortion Ban Act," which the Supreme Court upheld in Gonzales v. Carhart and which I discussed in a different column) limit a provider's flexibility in selecting the abortion procedure that best meets the needs of her patient. Measures of this sort may also deter providers from performing even permissible later-term abortions, because of the risk that a provider will inadvertently render herself subject to criminal prosecution.

Finally, parental-notification and parental-consent requirements compel some underage women who would rather keep the information private, to reveal their desire for an abortion to either a parent or a judge (or alternatively, as in all cases, to forgo the abortion).

These restrictions and others operate to make it more difficult and burdensome -- physically, financially, and emotionally -- for a woman to carry out a decision that she has made to have an abortion.

Oklahoma's Law: Liability Preclusion for the Physician Who May Not Want to Reveal Fetal Abnormalities to Pregnant Patients

As I noted above, the new Oklahoma law takes an approach quite distinct from that of the various laws I just described. Specifically, precluding liability for a doctor who fails to reveal a fetal anomaly to her patient is different from the above restrictions in two ways -- one more significant than the other.

The less significant way in which this law differs from the others is that -- rather than either requiring a doctor or a pregnant woman to do something that she considers burdensome, or prohibiting a doctor or a pregnant woman from doing something that she considers desirable -- this law protects a provider from being sued by a patient for violating what might otherwise have been a duty to provide material information to her patient.

Under the Oklahoma law, a doctor who wishes to tell her patient about a fetal anomaly may do so without penalty. The law simply gives the provider the additional option of withholding the information without legal consequence.

From the doctor's perspective, then, the law is not restrictive, because it does not in any way limit the alternatives available to her; indeed, it expands those alternatives in a manner that a pro-life doctor would likely appreciate. The structure of the law thus serves the interests of some providers, without harming the interests of other providers. In the end, each healthcare professional may freely decide how to proceed with respect to the disclosure of fetal abnormalities.

The reason that this first distinctive characteristic of the Oklahoma law is not extremely significant is that the law's success as an anti-abortion measure depends entirely on whether providers are, in fact, prepared to withhold the relevant information from their patients. Under this regime, legislators might worry that too many obstetricians would choose to provide their patients with information about fetal anomalies, notwithstanding being insulated from liability for refusing to do so. If legislators harbored this worry, then they could effectuate their goals more directly by passing a law prohibiting providers from revealing information to patients about fetal anomalies.

A prohibition would no longer leave the doctor free to decide how much to reveal to a patient. Yet it would still differ from other abortion restrictions in an important way: A woman who has decided that she does not want to remain pregnant could -- consistent with even the stricter version of the "information withholding" statute hypothesized above -- terminate her pregnancy without having to clear any additional hurdles.

In other words, the actual Oklahoma law -- and the hypothetical law that bans outright the disclosure of fetal abnormalities -- do not have the effect of pressuring or forcing a pregnant woman to continue a pregnancy against her will. What these laws do, instead, is to limit the options of women who want to remain pregnant, but only on the condition that their babies will be born normal.

The Oklahoma law in question and its hypothetical counterpart thus target the woman who would -- if she knew more facts about her particular fetus -- seek an abortion. The laws then prevent the woman from learning of these facts. Assuming that she does not discover her baby's anomaly until after giving birth, the measures at issue will not result in any woman's feeling, while she is pregnant, that she wants to have an abortion but is being stopped from doing so by a legal restriction.

It is only after she gives birth that the woman might wish, retrospectively, that she had terminated her pregnancy. At that point, the law would prevent her from suing her provider for failing to disclose the presence of abnormalities that -- had she known of them while pregnant -- might have led to an abortion.

Is the Oklahoma Law Illegitimate?

How one views the Oklahoma law (or its hypothetical stricter version) depends largely on how one views abortion generally, and abortion for fetal anomalies in particular.

One basis that I have highlighted for protecting a right to abortion is what I have termed the BII ("Bodily Integrity Interest"), an interest in not having another being (whether a "person" or not), occupying the inside of one's body against one's will.

On this approach, a woman who does not want to remain pregnant should be allowed to terminate her pregnancy, because it is unjust for the government (or anyone else) to force her to use the inside of her body to house and incubate a fetus against her will. A prohibition on abortion thus represents an assault on the woman's physical integrity.

As in the case of refusing unwanted sexual intercourse -- another expression of a woman's (or a man's) bodily integrity interest -- a woman need not have what we view as a "good reason" for deciding not to be physically intimate with another being. Compelling her to stay pregnant, no matter why she no longer wants to be, is a violation of her bodily integrity.

If a woman does, however, wish to remain pregnant, because she assumes that her fetus is normal and healthy, a law that keeps her from learning that her belief is mistaken does not force her to remain pregnant. It instead leaves her believing that the fetus inside her body is one for which she is willing to undergo the physical impositions of pregnancy (or at least, it keeps her agnostic on this question -- assuming that she knows about the law, she also knows that if there are abnormalities, she might not learn of them).

Is it a violation of a woman's rights to permit -- or to require -- that she remain ignorant (or agnostic) in this way? How we answer the question depends on whether or not we think a woman is entitled to have access to this kind of information before deciding whether or not to continue her pregnancy.

If protected or required ignorance (or agnosticism) is objectionable, it is objectionable by virtue of its tricking, rather than forcing, the woman into remaining pregnant. The question is whether or not the particular "trick" is appropriate, and a satisfying answer will require us to consider both the status of the fetus and the sorts of information that we believe people ought to have in deciding whether or not to have children.

Stated differently, to object to the Oklahoma law is to rely not on a woman's BII but instead on what I have called her OSI, or her "Offspring Selection Interest." That is, the Oklahoma statute impairs a woman's ability to decide what offspring she will or will not have, and our society tends to view such impairments differently, depending on the nature of the criteria that the woman is applying to the procreation decision.

What If the Fetus Were The Equal Of a Baby?

If one were to consider the fetus the equal of a newborn baby, then it would seem to follow that a woman considering whether or not to remain pregnant generally would not be entitled to find out that her fetus suffers from an anomaly. In other words, once a baby is at issue, the woman can no longer claim the right to obtain information that would facilitate a decision to kill the baby because he suffers from Down Syndrome or some other anomaly.

If we assume that the fetus is the moral equal of a newborn baby, it would follow -- in the presence of the right to terminate a pregnancy -- that supplying the pregnant woman with information about the fetus's genetic health would be the equivalent of extending to the woman who has just given birth the right to decide, now that the baby is already born, to euthanize him if he suffers from an abnormality.

If a fetus is the moral equal of a newborn baby, then withholding information about a fetal anomaly might actually be the most effective way simultaneously to protect the woman's bodily-integrity right to decide whether or not to continue her pregnancy, while also protecting the disabled baby's right not to be selectively targeted for elimination.

Once a baby exists, there cannot be a parental right (of the sort that either a mother or a father could possess, since it is separate from the bodily integrity interest) to be able to decide "I don't want a baby like that." If there were such a right, it would logically extend to the moment after a baby is born as well.

Acceptable and Unacceptable Offspring Discrimination: A Series of Hypothetical Cases

What if a person believes that a fetus is not the moral equivalent of a baby, and that the right to abortion rests not only on the woman's interest in bodily integrity, but also on her interest in preventing the existence of children she does not want to have?

As noted above, I have described this interest in my work as the OSI -- the Offspring Selection Interest. The OSI allows people, for example, to decide not to have children with a particular person (even if they choose to have sex with that person). Would this interest favor a woman's right to learn of her fetus's anomalies?

Not necessarily. Take, for example, a different kind of law. Imagine a country where people selectively aborted fetuses of one sex (e.g., this reportedly occurs in India with respect to female fetuses). Now consider passage of a law in that country to prohibit providers from revealing the sex of the fetus to a pregnant woman or to her partner. Many -- even among those who consider the fetus to be something less than the equal of a newborn baby -- would view such a law as legitimately serving the interest in avoiding a sex-skewed population, while simultaneously honoring the woman's right to terminate a pregnancy if she simply does not want to remain pregnant.

A woman in the above situation does not have to provide a reason for seeking an abortion. Instead, she is denied information that would enable her to rest her decision on a prohibited basis (sex). In a sense, this is an autonomy-enhancing approach to the abortion dilemma, because it leaves the woman entirely free to terminate her pregnancy at will, while also protecting society from invidious bases for pregnancy-termination.

Now consider a different hypothetical law. Assume that we eventually were able reliably to detect homosexuality at the genetic level, and could accordingly learn fetal sexual-orientation from an amniocentesis. What would we make of a law prohibiting providers from revealing fetal sexual-orientation to a pregnant woman?

Interestingly, the parents who would likely view fetal homosexuality as most upsetting might well be the same people who would view all abortion as unacceptable for religious reasons. Among those people who are pro-choice, however, many would be offended by the claim that a woman has a right to learn whether her fetus is destined to be gay or lesbian so that she might terminate the pregnancy in that event.

Though some of these pro-choice people would perhaps be unwilling to support a prohibition against revealing fetal sexual orientation, they might still support a law -- comparable to Oklahoma's -- protecting a doctor from being sued for malpractice for failing to reveal to a pregnant woman that her son or daughter would be gay or lesbian. Such a measure might, however -- because of how homosexuality continues to be viewed in some segments of our society -- be more controversial than one protecting doctors who failed to reveal whether an otherwise healthy baby would be male or female.

Is the Oklahoma Law Materially Different From These Hypothetical Offspring-Selection Laws?

For some readers, the Oklahoma law may seem very different from a statute preventing either sex-selection or sexual-orientation-selection abortion. It is wrong, you might say, to insist on having a male or a heterosexual child. By contrast, it may be more understandable for a parent to want to prevent the birth of someone who will face physical and/or mental obstacles that will make life extremely burdensome for him or her and for his or her parent(s). To withhold from a pregnant woman (and her partner), for example, the fact that a fetus will develop Tay-Sachs Disease, would result in a cruel horror for the baby, who would die while still a young child, and for the parents, who would have to watch their baby suffer continuously, only to die a painful death.

In the case of a fetus with Down Syndrome, or another genetic anomaly short of Tay- Sachs, different people might feel differently about it, even among those who would distinguish between a fetus and a newborn baby. Many people who have Down Syndrome say that they are happy to be alive and glad to have been born. To support the provision of information about Down Syndrome to a pregnant woman might seem, in the face of this fact, to suggest that the lives of those with Down Syndrome are not as inherently valuable as other lives, and that such lives must be assessed from a utilitarian perspective on the basis of whether people want a child who has Down Syndrome. The same may be true, as well, of other genetic anomalies that are less catastrophic than Tay-Sachs, but that would lead to babies who would face considerable mental and physical challenges and limitations during their lives.

Is the Oklahoma Law a Clever Ploy, or a Legitimately Distinct Type of Abortion Regulation?

One could say, cynically, that the people who press for legislation of the sort adopted in Oklahoma are utilizing any available means of reducing a woman's opportunity to obtain an abortion. This is why, for example, it is typically the same people who consistently lobby for all manner of abortion restrictions.

Yet, as I have discussed in this column, the pro-life community has now passed a very different abortion restriction in Oklahoma. The law in question does not -- in contrast to most abortion restrictions -- limit providers' ability to do what they want for their patients. And it also does not -- as most abortion restrictions do -- make it more difficult for a woman who no longer wants to remain pregnant to terminate her pregnancy. It instead works (through doctor-focused incentives) to reduce abortions by women who wish to remain pregnant, but who do not want to have a child with a genetic anomaly.

For someone who believes that a fetus is no different from a newborn baby, such a law is legitimate. It perfectly targets abortions that really are about killing a particular unwanted fetus, rather than about not wanting to be physically occupied by another being.

For someone who believes that a fetus is morally distinct from a baby, and that the right to abortion is at least in part about deciding which children one wants to have or avoid having, the law requires us to confront our own prejudices and to ask ourselves whether a genetically-impaired future is truly worse than no future at all. This question is not an easy one to answer, but the Oklahoma statute effectively raises it, without confounding the issue with bodily-integrity concerns in the way that a direct restriction on abortions for "bad reasons" would. Thus, whether intentionally or not, this law cleanly presents the questions whether and when there is a right to discriminate on the basis of disability in the unique context of procreation.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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