Amicus Curiae Brief — Thornburgh v. American College of Obstetricians and Gynecologists
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IN THE
Supreme Court of the U
October Term, 1984
RICHARD THORNBURGH, H. ARNOLD MULLER, HELLEN
B. O’BANNON, MICHAEL J. BROWNE, WILLIAM
R. Davis, Leroy S. ZimMERMAN, personally and
in their official capacities, and JOSEPH
A. SmyTu, In., personally and in his official
capacity, together with all others similarly situated,
Appellants,
vs.
AMERICAN COLLEGE OF OBSTETRICIANS AND
GYNECOLOGISTS, PENNSYLVANIA SECTION; HENRY
H. FeTTeRMAN, M. D., Twomas ALLEN, M. D., AND
Francis L. Hutcuins, In., M.D. on behalf of
themselves and all others similarly situated:
ALLEN J. KLE. D. O., on behalf of himself
and all others similarly situated;
Brooks R SusMAN; PAUL WASHINGTON; MorcaN P. PLANT,
on behalf of herself and all others similarly
situated; ELIZABETH BLACKWELL HEALTH CENTER
For WomEN; PLANNED PARENTHOOD OF
SOUTHEASTERN PENNSYLVANIA; REPRODUCTIVE
HEALTH AND COUNSELING CENTER; and
Women’s HEALTH SERVICES, INC.
Appellees.
ON APPEAL FROM THE UNITED STATES
COURT OF APPEALS FOR THE rHIRD CIRCUIT
BRIEF AMICI CURIAE OF OLIVIA GANS,
TERRYL CARLSON AND SUZI DEWING FOR
APPELLANTS RICHARD THORNBURGH, ET AL.
James „Ir.
Brames. Haynes & Abel
191 Harding Avenue
P. O. Box 1583
Terre Haute, IN 47808-1583
(812) 238-2421
Attorney for Amici
TABLE OF CONTENTS
b h % h % œ‚ KR h ‚ RF — rer erm erm rhc mC mC hehe ee
STATEMENT OF INTEREST ...................
BRIEF AMICI CURIAE NOTE ..................
STATUTES INVOLVED öPbPbꝛꝛꝛ ..
SUMMARY OF ARGUMENT ....................
ARGUMENT
II.
IV.
THE INFORMATION TO BE DiSCLOSED
UNDER SECTION 320, IS “NOT
OBJECTIONABLE” UNDER AKRON ...
AS DISCLOSURE REQUIREMENTS
REGULATING COMMERCIAL SPEECH,
SECTIONS 3205.a”(2) AND 3208 ARE
REASONABLY RELATED TO THE
STATE INTERES T IN PREVENTING
DECEPTION OF ABORTION CON-
SUMERS AND IN ASSURING IN-
FORMED CONSENT TO ABORTION....
CONSIDERING SECTIONS 3205(a)(2)
AND 3208 AS REASONABLE DISCLO-
SURE REQUIREMENTS REGULATING
COMMERCIAL SPEECH IS FULLY
CONSISTENT WITH THE INFORMED
CONSENT DOCTRINE AS APPLIED TO
OTHER AREAS OF MEDICAL PRAC-
o eee
CONSIDERATION OF TiiE CON-
TROVERSY BETWEEN THE “PHYSI-
CIAN PATERNALISM” AND THE
12
“PATIENT AUTONOMY” APPROACHES
TO INFORMED CONSENT IS CRITICAL
TO EVALUATING THE PERMISSIBLE
SCOPE OF GOVERNMENTAL REGU-
LATION OF THIS FORM OF COM-
MERCIAL SPEECH ...........---+--+++- 14
A. Medical Treatment Requires the
Consent of the Patient, and the Univer-
sal Modern Rule is That the Consent
IL 17
B. The Older “Physician Paternalism”
Approach Has Been Replaced By the
Newer “Patient Autonomy” Approach
in Pennsylvania and a Substantial
Number of Other States 18
C. Sections 3205(a\2) and 3208 Apply the
“Patient Autonomy” Approach to
. e eee 22
D. From a Patient Autonomy” Perspec-
tive, There Is Ample Precedent and
Reason for Providing No “Therapeutic
Exception” in Section 320] ..... 26
CONCLUIGION e 29
IL Al
APPENDIX B.....cccccccccccccccsccssccsseccseces A5
TABLE OF AUTHORITIES
Cases Page
American College of Obstetricians and Gynecologists,
Pennsylvania Section v. Thornburgh, 737 F.2d 283
r ᷑è ¹Qn—A—· „ 2 22 8
Beauvais v. Notre Dame Hospital, 387 A. 2d 689 (R. I.
EEE 2 27
Bowers v. Garfield, 382 F.Supp. 503 (E. D. Pa. 1974) 14
Bulman v. Myers, 467 A. 2d 1355 (Pa. Super. 1983). 26
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert.
denied, 409 U.S. 1064 (1972) ... 18, 19, 25, 26, 27, 28
Charles v. Carey, 627 F.2d 772 (7th Cir. 1980) 28
City of Akron v. Akron Center for Reproductive Health,
Inc., 462 U.S. 416 (1983h3)⸗) 6, 8, 29, 30
Congrove v. Holmes, 37 Ohio Misc. 95, 308 N.E.2d
e 27
Copper v. Roberts, 220 Pa. Super. 260, 286 A. 2d 647
D ˙è «' eecvcccecececces 14. 15
Doe v. Bolton, 410 U.S. 179 (1973))))):n n::Z 0c ee ee 24
Dunham v. Wright, 423 F.2d 940 (3rd Cir. 1970) .. 26, 27
Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966) 14
Henning v. Parsons, 95 N.M. 454, 623 P.2d 574(1981) 27
Jeffries v. MceCague, 242 Pa. Super. 76, 363 A.2d
EEE ² ..... .. . . . 14. 15
Logan v. Greenwich Hospital Association, 465 A. 2d
EEE Ee 27
Maher v. Roe, 432 U.S. 464 (1977) ........... 6, 7, 16, 25
Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980) 26
iii
Miller v. Kennedy, 11 Wash. Aop. 272, 522 P.2d 852
(1974), aff'd, 85 Wash.2d 151, 530 P.2d 334 (1975) 23. 25
Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960) 18
Planned Parenthood Association of Kansas City,
Missouri v. Ashcroft, 655 F.2d 848 (8th Cir. 1981) 28
Planned Parenthood League of Massachusetts „.
Bellotti, 641 F.2d 1006 (Ast Cir. 1981)......... 23, 28
Roe v. Wade, 410 U.S. 113 (1973)))))3))) 24
Salgo Stanford Universiiy Board of Trustees, 154
Cal. App. 2d 560, 317 P.2d 170 (1957) .......... 17
Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977) 19, 20
Sauso v. Shea, 390 A.2d 259 (Pa. Super. 1978) 26
Schloendorff v. Society of New York Hospital, 211 N. V.
DNIe 17
Scott v. Wilson, 396 S. W. 2d 532 (Tex. Civ. App. 1965),
aff'd sub nom. Wilson +. Scott, 412 S. W. 2d 299
cue... „„ 18
Virginia Pharmacy Board v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748 (1976) .... 10
West Virginia State Board of Education v. Barnette,
BID UD. GRE CIBER 2c ccccccccsccssccccccscess 11
Wilkinson v. Vesey, 110 R. I. 606. 295 A. 2d 676 (1972) 23
Woolley v. Henderson, 18 A.2d 1123 Me. 1980) .... 18
Zauderer vo Office of Disciplinary Counsel of the
Supreme Court of Ohio, 53 U.S.L.W. 4587 (May 28,
ü aceon 6. 10, 11, 12, 29, 30
iV
Statutes
18 Pa. Cons. STAT. 5320 20b( iT 10, 12
18 Pa. Cons. STAT. 532054 aK 2ᷣ/ . passim
„ I cn cn nn. ccccncceccsscnce passim
40 Pa. Cons. STAT. 51301. 10333 ꝗ 26
Other Authorities
Meisel & Kabnick, Jnformed Consent to Medical
Treatment: An Analysis of Recent Legislation, 41
ie. Se Sf eee 27
Note, Restructuring Informed Consent: Legal Therapy
for the Doctor-Patient Relationship, 79 YALE LA.
rc e 23. 27
Rosorr, A., INFORMED CONSENT (1981. 17, 22
Seidelson, Medical Malpractice: Informed Consent
Cases in “Full Disclosure” Jurisdictions, 14 Dua.
r ͤ ͤiAiXr . 20
Simpson, Jnformed Consent: From Disclosure to
Patient Participation in Medical Decisionmaking,
LL 27. 28
TRIBE, L., AMERICAN CONSTITUTIONAL LAW (1978)... 24
Victor, Jnformed Consent, 1981 MEDICAL TRIAL TECH.
— ͤ% 1 K 18. 20
No. 84-495
IN THE
Supreme Court of the United States
October Term, 1984
RICHARD THORNBURGH, H. ARNOLD MULLER, HELLEN
B. O’BANNON, MICHAEL J. BROWNE, WILLIAM
R. Davis, LERoy S. ZIMMERMAN, personally and
in their official capacities, and JOSEPH
A. SMYTH, JR., personally and in his official
capacity, together with all others similarly situated,
Appellants,
VS.
AMERICAN COLLEGE OF OBSTETRICIANS AND
GYNECOLOGISTS, PENNSYLVANIA SECTION; HENRY
H. FETTERMAN, M.D., THOMAS ALLEN, M.D., AND
FRANCIS L. HUTCHINS, JR., M.D. on behalf of
themselves and all others similarly situated;
ALLEN J. KLINE, D.O., on behalf of himself
and all others similarly situated;
Brooks R. SUSMAN; PAUL WASHINGTON; MORGAN P. PLANT,
on behalf of herself and all others similarly
situated; ELIZABETH BLACKWELL HEALTH CENTER
FoR WOMEN; PLANNED PARENTHOOD OF
SOUTHEASTERN PENNSYLVANIA; REPRODUCTIVE
HEALTH AND COUNSELING CENTER; and
WOMEN’S HEALTH SERVICES, INC.
Appellees.
ON APPEAL FROM THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
NOTE
This Brief Amici Curiae iz filed with the consent of all
parties to this appeal. A letter from each attorney stating
this consent has been filed herewith with the Clerk of this
Court. :
2
STATEMENT OF INTEREST OF THE AMICI
The amici Olivia Gans, Terry! Carlson, and Suzi Dewing
are women who procured abortions without being
adequately informed of the nature of the abortion
procedure, the medical risks involved, or the alternatives to
abortion. The amici believe that if accurate information on
the characteristics of their unborn children, the risks
attendant on abortion, and the public and private agencies
willing to assist them with childbirth, such as that
prescribed by 18 Pa. Cons. STAT. §§3205(a) and 3208, was
made available to them at the time they sought their
abortions, they would have decided against the procedure.
Olivia Gans obtained an abortion in New Jersey in 1981
at the insistence of her boyfriend. She spoke with four
doctors and a Planned Parenthood counselor before
undergoing the abortion, none of whom encouraged her to
think about her decision and make her own choice. She
heard only a cursory description of the abortion procedure,
and the unborn baby was referred to merely as a
“complication.” By her own count she was 13-14 weeks
pregnant, but she was told by the physician who performed
the abortion that she was only in the third month of her
pregnancy. No mention was made of any medical risks or
possible psychological consequences of abortion.
Mtss.Gans’ abortion was performed without anesthesia,
yet she was not warned beforehand about the pain the
procedure would entail. The method utilized was suction
aspiration even though, as Miss Gans learned later, that
procedure poses particular danger of bleeding and
incomplete removal of the fetus for a woman more than
twelve weeks pregnant. The cursory pelvic exam given her
a week later was inadequate to detect possible uterine
scarring or fallopian tube blockage resulting from an
abortion, and Miss Gans does not know whether she
suffered any long-term adverse physical effects. She has
felt some of the psychological damages of an abortion: she
found it difficult to hold a baby for two years after her
3
experience, and she has noted an inability to relax and
relate romantically to a man.
Miss Gans now believes that if she had been given
information on the development of her unborn child, on the
risks accompanying a second-trimester abortion, and on
the availability of childbirth assistance for a single woman
like herself, she would not have proceeded with the
abortion. Thus, in her view, her consent to her abortion was
not an informed consent, and her decision to abort her
unborn child was not the decision she would have made had
she been fully informed.
Terry! Carlson was a 27-year-old single parent living in
Idaho when she became pregnant with a third child in
1979. She was personally opposed to abortion, but was
unable to bear the expenses associated with the birth of a
baby. She unsuccessfully sought childbirth assistance from
several feminist and governmental organizations. No one
mentioned that as a full-time student without income who
was already receiving Aid to Families with Dependent
Children, she was probably eligible for childbirth
assistance through Medicaid. She was told that she would
be responsible for all childbirth medical expenses unless
she gave the child up for adoption. She did not feel that
adoption was an option for her because of the effect she
feared it would have on her other two young children Her
student health insurance would pay for 75% of the cost of an
abortion ($150.00), but would pay only $250.00 toward
childbirth costs. She consulted her physician and was told
that an abortion would entail no adverse consequences for
her and that the fetus was simply a “mass of cells.” Feeling
that no other course of action was possible for her, she made
a hasty decision to abort in the sixth or seventh week of her
pregnancy. However, Miss Carlson remained uneasy about
her decision and contemplated refusing the abortion even
as she was being prepared for the procedure. She did not
realize that the abortion was underway until she inquired
about the vacuum noise she was hearing and was told it was
4
the sound made by the suction curettage machine which
was being used to perform the abortion. She became
hysterical when she realized it was too late to refuse the
abortion.
Miss Carlson suffered serious post-abortion
gynecological problems for four years. The additional
psychological consequences of her abortion included guilt,
anger, depression, loss of self-esteem, and suicidal
tendencies. She feels that if printed materials documenting
the development of the fetus and the risks of abortion had
been made available to her, she would have read them and
realized the fetus was not the mere “mass of cells” nor
abortion the innocuous procedure she had been led to
believe. Most significantly, because her financial situation
was one of the major factors in her decision to abort, Miss
Carlson would have been anxious to review any
information on childbirth assistance and paternal
responsibility. In sum, Miss Carlson asserts that disclosure
of the information required by 18 Pa. Cons. Start.
§§3205(a) and 3298 would have provided her with a factual
basis for refusing the abortion and finding the means to
give birth to her baby, which was her initial and overall
desire.
Suzi Dewing became pregnant in 1976, a few months
before her wedding date. Her mother, her fiance, and the
doctor who discovered her pregnancy all advised her to
have an abortion. She was told nothing about the abortion
procedure, any possible adverse consequences, or the
development of the unborn child during her pregnancy. It
was not until she was on the operating table at the abortion
clinic that her doctor asked her, “Would you like me to
explain the procedure?” Mrs. Dewing passed out from pain
while her cervix was being dilated and never heard the
explanation.
The abortion was followed by adverse psychological and
physiological consequences for Mrs. Dewing. She felt a
des, ate need to replace the baby she had aborted. She
5
moved her wedding day up in order to have another child
earlier. However, her two subsequent pregnancies ended
with mid-term miscarriages, as did a third pregnancy
which followed two successful but complicated
pregnancies. These miscarriages were accompanied by
feelings of guilt and fear that she was being punished for
her abortion.
Mrs. Dewing believes that, had she been informed about
the alternatives available to her and the risks and
consequences of abortion, her decision would have been
different. Specifically, the public and private assistance
available for childbirth would have alleviated the
insecurity and anxiety of bearing the child without the
approval of her family and fiance. Knowledge of the
possibility that an abortion could affect her subsequent
childbearing ability would have immediately dissuaded
her from having an abortion, because a family was
important to her. Likewise, if the development of the
unborn child inside her had been explained to Mrs.
Dewing, she would not have succumbed to the pressure to
abort. In summary, Mrs. Dewing believes that if she had
received the information required by 18 Pa. Cons. STAT.
§§3205(a) and 3208, she would not have chosen to abort.
BRIEF AMICI CURIAE
NOTE
The Questions Presented and The Statement of the Case
are omitted from this Amici Curiae Brief since they are
amply stated in the Appellants’ Brief of Richard
Thornburgh, et al.
STATUTES INVOLVED
The text of 18 Pa. Cons. STAT. §§3205(a\2) and 3208 is set
forth in Appendix A.
6
SUMMARY OF ARGUMENT
The constitutional right of a woman to choose to
terminate her pregnancy includes “at least an equal right
to choose to carry her fetus to term as to choose to abort it.”
Maher v. Roe, 432 U.S. 464, 472 n. 7 (1977). The
Pennsylvania legislature has a legitimate and compelling
interest in protecting the exercise of this fundamental
constitutional right to choose by ensuring that any woman
exercising the right has the opportunity to be fully
informed in making her choice. Toward that end, the
legislature enacted 18 Pa. Cons. STAT. §§3205(aX2) and
3208, requiring an abortion practitioner to inform a
pregnant woman that medical childbirth assistance
benefits may be available to her, that the father is liable for
support of the child, and that printed materials are
available describing the unborn child and listing agencies
offering alternatives to abortion. The information to be
disclosed is similar to that held “not objectionable” in City
of Akron v. Akron Center for Reproductive Health, Inc., 462
U.S. 416 (1983).
Because of the contractual, consumer-oriented nature of
medical practice in general, and abortion practice in
particular, the information supplied by a physician to his
patient is a form of “commercial speech” subject to
reasonable regulation by the state pursuant to its interest
in protecting consumers from deception. The principles
recently expounded by this Court in Zauderer v. Office of
Disciplinary Counsel of the Supreme Court of Ohio, 53
U.S.L.W. 4587 (May 28, 1985) are thus applicable in
assessing the constitutionality of Pennsylvania’s disclosure
requirements. In Zauderer, Ohio had required attorneys
“to provide somewhat more information than they might
otherwise have been inclined to present” in advertising for
contingency-fee clients. The disclosure requirement was
upheld by this Court because it was not unduly burdensome
or intrusive, it did not prescribe unorthodox speech, and it
was reasonably related to the state's interest in preventing
7
consumer deception. Those criteria are met by the
Pennsylvania disclosure requirements.
Most significantly, Pennsylvania’s regulation of the
“commercial speech” attending abortion is entirely
consistent with the informed consent doctrine requiring
disclosure of relevant facts prior to a patient’s decision to
undergo treatment. Specifically, the requirements of
sections 3205(a\2) and 3208 reflect Pennsylvania's decision
to apply a “patient autonomy” standard of disclosure in all
medical practice, including abortion practice. This
standard, which has also been adopted by a substantial
minority of other states, focuses on the information which a
reasonable patient would consider significant in making a
decision to undergo medical treatment.
In holding Pennsylvania’s disclosure requirements
unconstitutional, the court below in effect held that
Pennsylvania must adhere to a “physician paternalism”
standard of disclosure in the abortion context, as
determined by the usual disclosure practices of physicians
in similar circumstances. However, if the “patient
autonomy” approach is constitutional as applied to medical
tre nent in general, it should be equally constitutional as
applied to abortion. Moreover, “when an issue involves
policy choices as sensitive as those implicated [here]. . ., the
appropriate forum for their resolution in a democracy is
the legislature.” Maher v. Roe, 432 U.S. at 479.
ARGUMENT
This brief is concerned with the sole issue of whether or
not 18 Pa. Cons. STaT. §§3205(a)(2)* and 3208 are facially
unconstitutional. Your amici argue that the Court of
Appeals erred in precipitously holding these provisions
*The court below apparently struck down §3205 as a whole, along with
§3208, because of its finding of non-severability of those informed
consent provisions which it deemed unconstitutional. This brief focuses
on the constitutionality of the provisions of §§3205( a2) and 3208.
constitutionally infirm in American College of
Obstetricians and Gynecologists v. Thornburgh, 737 F. 2d
283 (3rd Cir. 1984). They concede that the 24-hour waiting
period required by section 32050 2) is unconstitutional
under City of Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416 (1983), but assert that the waiting
period requirement is plainly severable from the
remainder of this section.
I. THE INFORMATION TO BE DISCLOSED
UNDER SECTION 3205(a)(2) IS “NOT
OBJECTION ABLE” UNDER AKRON
As Judge Seitz in dissent observed, the information
provided by Section 320a\2) is “similar” to information
this Court held “not objectionable” in Akron. Thornburgh,
737 F.2d at 313 (Seitz, J., dissenting), quoting Akron, 462
U.S. at 445 n. 37. Section 3205(a\(2\i) and (ii) require that
the woman be informed that medical assistance benefits
might be available to her if she chooses to carry her child to
term, and that the father is economically liable should she
choose to do so.
This information on medical assistance benefits and
paternal responsibility provided by section 3205(a\2\i)
and (ii) cannot be fairly said to be sufficiently burdensome
or in terrorem to cross the line this Court drew between
permissible information designed “to inform the woman's
consent“ and impermissible information designed to
“persuade her to withhold it altogether.” Akron 462 U.S. at
444.
Section 320 4a 2M iii) merely requires that the woman be
informed of the existence of printed information on
abortion alternative agencies and on fetal development,
that these materials b provided at the woman's request,
and that the woma. be assisted in interpreting these
materials should she decide that they would be valuable in
reaching a decision. It does not require the physician or his
9
agent to recite a “litany of information” regardless of its
relevance to the particular patient, as the ordinance at
issue in Akron would have done. See Akron, 462 U.S. at 445.
To the contrary, section 3205(a\2)iii) initially requires
only that the physician or his agent inform the woman of
the availability of materials on fetal development and
abortion alternatives—materials that the woman may
choose to inspect or not as she so desires. Moreover, neither
the physician nor his agent is required to present the state-
produced information as though it represented his own
knowledge or views, and indeed they may criticize,
comment on, or recommend against inspection of these
materials at will.
These provisions are unconstitutional under Akron, then,
only if one or the other or all contain information that the
physician can withhold because he does not believe “the
information is relevant to[the woman s] personal decision.”
Id. Knowledge of such information would obviously be
relevant to the abortion decisions of at least some women, as
the experience of the amici attests.
II. AS DISCLOSURE REQUIREMENTS
REGULATING COMMERCIAL SPEECH,
SECTIONS 3205(a2) AND 3208 ARE
REASONABLY RELATED TO THE STATE
INTEREST IN PREVENTING DECEPTION OF
ABORTION CONSUMERS AND IN ASSURING
INFORMED CONSENT TO ABORTION
In the highly commercialized and deeply politicized
context of abortion practice, it is simply unrealistic to rely
on abortion providers to willingly provide information such
as that prescribed by section 3205(a\(2) to women
contemplating abortion, even though it might be essential
to their informed decision making. Indeed, the
uncontroverted conclusion of the Pennsylvania legislature, -
after extensive hearings and debates, is to the contrary:
10
Reliable and convincing evidence has compelled the
General Assembly to conclude and the General
Assembly does hereby solemnly declare and find
that...[{mJany women now seek or are encouraged to
undergo abortions without full knowledge of the
development of the unborn child or of alternatives to
abortion.
18 Pa. Cons. Stat. §3202(b\1). In view of this factual
context, and because of the very limited nature of the
disclosure requirements of section 3205(a\(2), this Court's
recent opinion in Zauderer v. Office of Disciplinary Counsel
of the Supreme Court of Ohio, 53 U.S.L.W. 4587 (May 28,
1985), is controlling in determining the constitutionality of
this provision.
The contractual nature of the physician-patient
relationship and the degree to which disclosure
requirements have been traditionally imposed on medical
practice plainly indicate that the information that
physicians provide wo patients in order to secure consent to
treatment (for which physicians often reap considerable
financial rewards) is commercial in nature. Since that
information is “commercial speech,” it is subject to
considerably greater regulation than speech that is not a
vehicle of information directly leading to decisions to
purchase goods or services. Indeed, because the extension
of constitutional protection “to commercial speech is
justified principally by the value to consumers of the
information speech provides, see Virginia Pharmacy
Board v. Virginia Citizens Consumer Council, Ine., 425
U.S. 748 (1976), the constitutionally protected interest
in not providing any particular factual information is
minimal.” Zauderer, 53 U.S. LW. at 4594 (emphasis in
original).
In Zauderer. this Court held that the Ohio Supreme
Court could properly discipline an attorney for failure to
disclose the possible significant litigation costs of an
unsuccessful lawsuit in his advertisement seeking clients
11
for contingency-fee-based suits for damages resulting from
use of the Dalkon Shield intrauterine device. Just as in
Zauderer where Ohio [had] not attempted to prevent
attorneys from conveying information to the public. . .[but]
only required them to provide somewhat more
information than they might otherwise have been inclined
to present,” Jd. at 4594, Pennsylvania in the instant case
does not seek to prevent the physician from presenting his
views on abortion or its alternatives, but merely requires
that he let his patient know certain additional information
that might be critical in arriving at an informed abortion
decision and which the physiciar would not otherwise be
inclined to present.
As in Zauderer, Pennsylvania has not attempted to
prescribe for the physician, his agent, or the woman
contemplating abortion “what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force
citizens to confess by word or act their faith therein.” Id.,
quoting West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 642 (1943). The counseling
procedure that precedes abortion is certainly analogous to
the “counsel” or representations in advertising that an
attorney provides to his potential client on the nature and
consequences of engaging the attorney to sue, the matter at
issue in Zauderer; the factual information prescribed by
section 3208 is intended to be “objective, non-judgmental
and designed to convey only accurate. information.“
From this perspective, Pennsylvania, like Ohio in
Zauderer, has “attempted only to prescribe what is
orthodox” in the representations made to the woman prior
to abortion, which are in the nature of commercial! speech
or advertising, “and its prescription has taken the form of a
requirement that...[abortion practitioners]
include...purely factual and noncontroversial
information” in their representations to women
contemplating abortion. See Zauderer, 53 U.S.L.W. at
4594.
12
As this Court observed in Zauderer, “unjustified and
unduly burdensome disclosure requirements” might be
deemed constitutionally impermissible. Id. The detailed
and restrictive disclosure requirements imposed by the
ordinance at issue in Akron might be so characterized, but
the requirements of sections 3205(a2) and 3208 are far less
intrusive and far more permissive. Moreover, like the
disclosure requirement upheld in Zauderer, the disclosure
required by section 3205(a 2) is reasonably related to the
state’s interest in preventing deception of consumers. As
the Pennsylvania legislature concluded, women are often
deprived of information on abortion alternatives and fetal
development when making abortion decisions. 18 PA.
Cons. STAT. §3202(bX1). A requirement that just such
information be provided or made available to the woman is
thus “reasonably related” to insuring against intentional or
negligent deceptive counseling practices that might lead
the woman to procure an abortion that she would not have
otherwise chosen. It is, therefore, constitutional.
III. CONSIDERING SECTIONS 3205(a)(2) AND
3208 AS REASONABLE DISCLOSURE
REQUIREMENTS REGULATING COMMERCIAL
SPEECH IS FULLY CONSISTENT WITH THE
“INFORMED CONSENT” DOCTRINE AS
APPLIED TO OTHER AREAS OF MEDICAL
PRACTICE
By enacting sections 3205(aX2) and 3208, Pennsylvania
imposed specific “informed consent” requirements on
abortion practice. This legislation hardly represents
unique imposition of state authority on the spoken or
written disclosures that physicians are generally required
to make in order to secure the consent of their patients to
medical treatment of all kinds. Both the legislatures and
the courts of the several states and the federal government
impose disclosure requirements on physicians to assure
that full and complete information is provided to patients
prior to medical treatment.
— —
13
Unless abortion is deemed an utterly unique medical
procedure, the extent to which the state can properly
regulate the “commercial speech” that attends abortion
must be determined in the context of the degree to which
the state generally imposes disclosure requirements on
medical practice. Since providing abortion services is at
least as much a commercial enterprise as any other area of
medical practice, and since many other areas of medical
practice implicate rights and interests of equal or greater
import to the individual and the state, it would be
anomalous to impose some higher standard on regulation of
the “commercial speech” that attends abortion than on
regulation of the speech that attends other medical
practices. The holding of the Third Circuit presents such an
anomaly.
The requirement of section 3205(a\2) that the physician
disclose the availability of medical assistance benefits,
enforceability of paternal support, and information on fetal
development and abortion alternatives permits the woman
to decide whether such information is relevant. In striking
this provision, the Third Circuit imparts to the physician
the privilege to withhold potentially critical information on
the theory that the woman has a right to rely on her
physician’s “medical judgment” in making a decision that
is an exercise of her right of privacy. But it is plain that such
withholding of information by the physician would have
nothing whatever to do with “medical” judgment.
Moreover, the Third Circuit’s opinion neglects entirely
the controversy that commentators, courts, and legislators
are currently engaged in over what ought to be the
standard of disclosure for medical treatment of any kind.
Indeed, it would impose on Pennsylvania and several other
states a standard of disclosure that is contrary to the
standard that their courts and legislature have determined
to apply to medical practice generally and with which the
requirements of sections 3205(aX2) and 3208 are fully
consistent.
14
IV. CONSIDERATION OF THE CONTROVERSY
BETWEEN THE “PHYSICIAN PATERNALISM”
AND THE “PATIENT AUTONOMY”
APPROACHES TO INFORMED CONSENT IS
CRITICAL TO EVALUATING THE
PERMISSIBLE SCOPE OF GOVERNMENTAL
REGULATION OF THIS FORM OF
COMMERCIAL SPEECH
The debate over what standard ought to govern
disclosures the physician must make to his patient in order
to receive informed consent concerns two competing
perspectives.
One perspective, which emphasizes physician discretion
and judgment, may be called the “physician paternalism”
approach. Its proponents say that the standard of
disclosure ought to be that practiced by physicians in the
locality. This approach, like that taken by the Third Circuit
in this case, assumes that doctors generally know what is
best for their patients, and gives doctors, as a group, great
leeway to circumscribe the breadth and scope of the
information to be disclosed to or withheld from the patient.
The other perspective, which emphasizes patient
knowledge and decision, may be called the “patient
autonomy” approach. Its proponents say that the standard
of disclosure ought to be what an average, reasonable
patient would consider material to the decision, regardless
of what physician practice may be. This approach assumes
that competent adults should be enabled to determine for
themselves what is done with their bodies, and places the
premium on patient freedom of choice.
Pennsylvania law clearly follows the “patient autonomy”
approach to informed consent to medical treatment.
Jeffries v. MceCague, 242 Pa. Super. 76, 362 A.2d 1167
(1976); Bowers v. Garfield, 382 F. Supp. 503(E.D. Pa. 1974);
Copper v. Roberts, 220 Pa. Super. 260, 286 A.2d 647 (1971);
Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966).
15
Indeed, failure to secure informed consent is considered an
intentional tort (“a technical assault”) in Pennsylvania,
rather than an expression of negligence. See, e. g., Jeffries,
363 A.2d at 1171.
At the same time, informed consent to medical treatment
is deemed to be “an area basically governed by contractual
concepts.” Copper, 286 A.2d at 650. The consumer-
oriented, contractual approach to informed consent
demands that, because “the patient must bear the expense,
pain and suffering of any injury from the . . treatment, his
right to know all the material facts pertaining to the
proposed treatment cannot be dependent upon the self-
impcsed standard of the medical profession.” Id. Thus, the
medical profession’s “community of silence” is not
permitted to deny the patient any material facts needed to
make an informed decision under Pennsylvania law.
Pennsylvania clearly follows this same approach with
regard to abortion. The legislature chose not to defer to the
abortion-performing physician’s view of what is best and
allow him or her to control the flow of information to the
patient, as under the “physician paternalism” approach.
Rather, the legislature proceeded on the assumption that
abortion is an especially personal decision, to be made by
the woman herself, and sought to assure her of access to the
information material to that decision, thus employing the
rationale behind the “patient autonomy” approach.
Without any discussion of the arguments which have
been advanced for and against each approach, or of the
relation of constitutional provisions to those arguments, the
Third Circuit, in striking sections 3205(aX2) and 3208, in
effect held that, at least in the context of abortion, the
Constitution imposes on the States the “physician
paternalism” option and forbids to them the “patient
autonomy” approach. The ruling prohibits the state from
regulating the “commercial speech” that attends abortion
by applying as the standard of disclosure what the average,
16
responsible abortion patient might want to know in order to
make a competent abortion decision. Instead, according to
the Third Circuit, the physician, as a matter of
constitutional law, has a right to withhold information
from the abortion patient if abortion practitioners
customarily do so. In view of Pennsylvania’s strong
adherence to the doctrine of “patient autonomy,” this
holding creates an anomaly in Pennsylvania law: abortion
practitioners may operate on an altogether different
standard of disclosure than physicians in all other
circumstances.
In the belief that no final ruling on the application of th-
Constitution to informed consent requirements for
abortion should be made without at least some
consideration of the nature of informed consent
requirements for medical treatment in general, your amici
offer the remainder of this brief for the limited purpose of
reviewing the two competing approaches to informed
consent disclosure standards and the relevance of those
approaches to the validity of legislative judgments about
what standard best achieves effective freedom of choice for
women deciding whether to undergo abortion.
We address what should be a central issue in this case:
whether, in light of the considerable controversy over the
respective wisdom of the “physician paternalism” and
“patient autonomy” approaches, this Court should adopt a
rule that constitutionally freezes the “physician
paternalism” approach as the only allowable model for
abortion related informed consent legislation, or whether,
“when an issue involves policy choices as sensitive as those
implicated [here] ..., the appropriate forum for their
resolution in a democracy is the legislature.” Maher v. Roe,
432 U.S. 464, 479 (1977). ”
Pennsylvania's treatment of the “commercial speech”
that attends abortion is fully consistent with the “patient
autonomy” approach it takes toward informed consent to
17
all other medical procedures. This Court should not carve
out a special doctrine for the commercial speech attending
abortion that is contrary to the expressed preference of
Pennsylvania and several states for patient autonomy, as
well as to this Court’s holding in Zauderer that the State
may constitutionally require disclosure of potentially
critica! information in a similar commercial setting.
A. Medical Treatment Kequires the Consent of the
Patient, and the Universal Modern Rule Is That the
Consent Must Be Informed
Under Anglo-American law, it is axiomatic that a
physician must first obtain the patient’s consent before
undertaking any non-emergency treatment. As Justice
Cardozo stated in Schloendorff v. Society of New York
Hospital, 211 N.Y. 125, 129-130, 105 N. E. 92, 93 (1914):
Every human being of adult years and sound mind has
a right to determine what shall be done with his own
body; and a surgeon who performs an operation
without his patient’s consent, commits an assault, for
which he is liable in damages.
As he consent doctrine evolved, it became necessary
under the law for the physician not only to obtain
permission to proceed, but also to make a reasonable
disclosure to the patient of the nature and probable
consequences of the proposed treatment. See Salgo
Stanford University Bd. of Trustees, 154 Cal. App.2d 560,
317 P.2d 170 (1957), the landmark case introducing the
principle. “Numerous courts throughout the 1960's looked
beyond the fact of the patient’s consent to question the
quality of the physician’s disclosure underlying the
consent.” A Rosorr, INFORMED CONSENT 4 (1981). Some
version of the informed consent requirement is now in
effect in all but one of the United States. See Table of
Current Positions on the Approach to Informed Consent by
State, this brief at 22.
18
B. The Older “Physician Paternalism” Approach Has
Been Replaced by the Newer “Patient Autonomy”
Approach in Pennsylvania and a Substantial
Number of Other States
When the informed consent doctrine first came to be
applied in the late 1950’s and early 1960's, it was initially
analyzed in the manner of traditional medical malpractice
tort negligence. Like the duty of care by which deviations
amounting to negligence are measured, the duty of
disclosure by which deviations amounting to denial of
informed consent were to be measured was set as “those
disclosures which a reasonable medical practitioner would
make under the same or similar circumstances.” Natanson
v. Kline, 186 Kan. 393, 409-10, 350 P.2d 1093, 1106 (1960).
This approach came to mean that a physician need only
disclose those facts which the average, reasonable
practitioner, of the same speciality and geographic
location, would have revealed under similar
circumstances. Victor, Informed Consent, 1981 MEDICAL
TRIAL TECH. 138, 146. See, e. g.. Woolley v. Henderson, 418
A.2d 1123, 1128-32 (Me. 1980).
Courts first began to move away from this approach in
dealing with elective surgery—a category into which most
abortions fall. For example, in Scott v. Wilson, 396 S.W.2d
532 (Tex. Civ. App. 1965), aff'd sub nom. Wilson v. Scott, 412
S. W. 2d 299 (Tex. 1967}, the court held that when a patient
is considering an elective operation, a physician has the
duty to make a full disclosure of the nature of the operation,
the process contemplated, the dangers of the operation and
possible alternatives to the treatment.
The full introduction of the “patient autonomy” approach
into case law came in Canterbury v. Spence, 464 F.2d 772
(D.C. Cir.), cert. denied, 409 U.S. 1064 (1972), which
remains the leading case. The D.C. Circuit concluded that
“(rjespect for the patient's right of self-determination on
particular therapy demands a standard set by law for
19
physicians rather than one which physicians may or may
not impose upon themselves.” Id. at 780. It based its
decision on the premise that “it is the prerogative of the
patient, not the physician, to determine for himself the
direction in which his interests lie,” and that the duty to
disclose information important for that determination is
not “dependent upon the existence and nonperformance of
a relevant professional tradition Id. at 777, 779.
Instead of usual professional practice, therefore, the
court concluded:
[The patient’s right of self-decision shapes the
boundaries of the duty to reveal. That right can be
py ay th: communications to the
patient, then, must be measured by the patient’s need,
and that need is the information material to the
decision. Thus the test for determining whether a
particular peril r must be divulged is its materiality to
Id. at 782-83.
The Canterbury v. Spence “patient autonomy” approach
came to be followed by a substantial minority of
jurisdictions. Adopting the position, a Maryland court
summarized the trend:
In recent years...an ever-expanding number of
courts have declined to apply a professional standard
of care in informed consent cases, employing instead a
general or lay standard of reasonablenesg set by law
and independent of medica! custom. These decisions
recognize that protection of the patient’s fundamental
right of physical self-determination—the very
cornerstone of the informed consent doctrine—
mandates that the scope of a physician's duty to
disclose. be governed by the patient’s informational
needs. Thus, the appropriate test is not what the
physician in the exercise of his medical judgment
thinks a patient should know before acquiescing in a
proposed course of treatment; rather, focus is on
what data the patient requires in order to make an
intelligent decision.
Sard v. Hardy, 281 Md. 432, 442, 379 A.2d 1014, 1021
(1977). See also Victor, supra p. 20, at 148; Seidelson,
Medical Malpractice: Informed Consent Cases in “Full
Disclosure” Jurisdictions, 14 Dug. L. Rev. 309, 312 (1976).
The following table summarizes the 1985 positions on
standards of disclosure of the District of Columbia, Puerto
Rico, and the 50 states. Twenty-eight of the jurisdictions
with positions adopt an approach differing from the pure
“physician paternalism” model which the Third Circuit
implicitly held to be the only approach the Constitution
accepts when applied to “commercial speech” attending
abortion. Pennsylvania strongly insists on application of
the patient autonomy rule. See this brief at 16. The newer
“patient autonomy” approach, therefore, is seen to be an
approach accepted and advocated by a substantial
minority of states for reasons closely related to the essential
basis of the informed consent doctrine. This understanding
counsels against pre-empting Pennsylvania's legislative
choice through the establishment of a constitutional rule
compelling “physician paternalism.”
TABLE OF CURRENT POSITIONS ON THE
APPROACH TO INFORMED CONSENT BY
STATE*
State No Patient Physician Hybrid
Law Autonomy Paternalism
Alabama’
Alaska’
Arizona’
Arkansas
California
Colorado”
Connecticut *
Delaware’
Ihstrict of Columina’ *
x ~*~ “KK x
Rhode Island“
South Dakota“
West Virginia”
Wisconsin“
Wyoming“
TOTAL
*The sources for this summary are given by state in Appendix B.
21
~~ — —
2 —
— —
R N en
= = „ 2
*
24
“= K
(Sections 3205(a)(2) and 3208 Apply the “Patient
Autonomy” Approach to Abortion
Sections 3205(a2) and 3208 provide for disclosure
concerning the availability of medical assistance benefits,
paternal support, and printed information on abortion
alternatives and fetal development. It was logical for
Pennsylvania to consider these categories to be material to
the decision whether or not to undergo an abortion. Since
materiality to the decision is the standard for disclosure
employed by states such as Pennsylvania which have
adopted the “patient autonomy” approach, disclosure with
regard to these categories lies fully within the bounds of
informed consent doctrine.
Over the 20-odd years since the term informed consent
came into usage in the medicolegal context, courts
have been ing, on a case-by-case basis, a list of
items requiring disclosure. Stated in simple, generic
terms, the list includes:
diagnosis (i.e., the patient's condition or problem)
*nature and purpose of the proposed treatment
* risks and consequences of the proposed treatment
* probability that the proposed treatment will be
successful
* feasible treatment alternatives
* prognosis if the proposed treatment is not given.
Rosorr, swprea p. 19, at 41 (emphasis in original).
The disclosures required by sections 3205(a 2) and 3208
fit within these categories. Disclosure of medical assistance
benefits, paternal support, and the availability of printed
information on abortion alternatives plainly relates to
“feasible treatment alternatives —the nature of the
financial and other support the woman might have
available should she choose to carry her child to term
rather than to abort. So long as the “patient autonomy”
alternative to the “physician paternalism” approach,
“commercial speech” disclosure requirements in these
categories can hardly be objectionable.
It has been suggested, however, that disclosure of
information concerning the characteristics of the fetus.
such as that made available under sections 3205(a\2) and
3208, “is not directly materia! to any medically relevant
fact, and thus does not serve the concern for providing
adequate medical! information that lies at the heart of the
informed consent requirement.” Planned Parenthood
Leaque of Massachusetts v. Bellotti, 641 F. 2d 1006, 1021 (ist
Cir. 1981). This perception misconceives both the nature of
the standard of disclosure in informed consent doctrine—at
least under the “patient autonomy” approach—and the
meaning of “medically relevant” in the context of abortion
as that concept has been delineated by this Court.
“{T}he very basis of the informed consent theory [is] the
patient's right to be the final judge to do with his body as he
wills.” Wilkinson v. Vesey, 110 RI. 606, 625, 295 A.2d 676,
688 (1972). Central to this position is the view that the
“decision about what is or is not relevant information upon
which a patient can base an informed consent is a human
judgment, not a determination requiring medical!
expertise.” Note, Restructuring Informed Consent: Legal
Therapy for the Doctor-Patient Relationship, 79 Y ace LJ.
1533 (1970). Accord, Wilkinson, 295 A.2d at 688. From the
“patient autonomy” perspective, therefore, the nature of
the information deemed material to the patient's decision is
not inherently limited to a description only of physica!
health risks associated with the procedure; rather, the
question of materiality is, as a Washington court phrased it,
“Would the patient as a human being consider this item
in choosing his or her course of treatment“ Miller r.
Kennedy, 11 Wash. App. 272, 282-283, 522 P.2d 852, 860
(1974) affd, 85 Wash.2d 151, 530 P.2d 334 (1975).
It is simply disingenuous to argue that information about
the fetus is irrelevant to a choice about abortion, and that
the only things “the patient as a human being [would]
consider” in making a reflected choice whether to undergo
it are physical health risks. As this Court noted in R.
Wade, 410 U.S. 113, 116 (1973), “One's philosophy, one’s
experiences, one’s exposure to the raw edges of human
existence. one's attitudes toward life and family and
their values, and the moral standards one establishes and
seeks to observe, are all likely to influence and to color one’s
thinking and conclusions about abortion.” That network of
values revolves around the attitude one takes toward the
fetus’s status and prospects as weighed together with the
needs and plans of the pregnant woman and perhaps her
family. If, as Laurence Tribe has suggested, “Roe vr. Wade
represents less a decision in favor of abortion than a
decision in favor of leaving the matter, however it might
come out in particular cases, to women L. TRIBE,
AMERICAN CONSTITUTIONAL Law 933 (1978), then it cannot
properly be said that the whole tangle of ethical and human
issues inherently associated with abortion are to be deemed
irrelevant to women's decisionmaking. Those issues are
inextricably bound up with the existence and nature of the
fetus.
Thus. the notion that information on fetal development is
“medically irrelevant” is mechanistically narrow in a
manner at odds with this Court's delineation of that concept
in the context of abortion. “[M Jedical judgment,” this Court
has held, “may be exercised in the light of all factors—
physical, emotional, psychological, familial, and the
woman's age—relevant to the wellbeing of the patient. All
these factors may relate to health.” Doe vr. Bolton, 410 U.S.
179. 192 (1973). This sense of the medically relevant is
certainly broader than merely physical complications: it
argues against the exclusion of fetal information from the
realm of the “medical.”
25
The applicability of the “patient autonomy” informed
consent rationale is not diminished because information
about the fetus has no precise analogue in information
required to be disclosed about other medical procedures.
“The simple answer to the argument that similar
requirements are not imposed for other medical
procedures is that such procedures do not involve the
termination of a potential human life.” Maher rv. Roe, 432
U.S. at 480. The essential point is that the rationale for the
disclosure of fetal information is the same as that for the
disclosure of information associated with medical
treatments other than abortion: in the “patient autonomy”
view, disclosure should be made of “what the patient would
consider important to[her]decision.” Canterbury v. Spence,
464 F.2d at 783.
The requirement of section 3205(a)(2\ iii) merely permits
the woman to decide whether she considers the information
on fetal development important enough to her decision to
view it. Only a most paternalistic view of the abortion
decision—a view otherwise forthrightly and uniformly
rejected by Pennsylvania—would presume to deny the
woman the right to know that such materials even exist.
In sum, the disclosures required by sections 3205(a)(2)
and 3208 are rooted in the philosophy that underlies the
“patient autonomy” approach to informed consent used by a
respectable minority of the States, including Pennsylvania:
“The patient has the right to chart [her] own destiny, and
the doctor must supply the patient with the material facts
the patient will need in order to intelligently chart that
destiny with dignity.” Miller v. Kennedy, 522 P.2d at 860.
The requirement to disclose information about medical
assistance benefits, paternal support, and the existence of
materials on alternatives to abortion and the
characteristics of the fetus is medically relevant and fits
appropriately into the “patient autonomy” informed
consent doctrine.
26
D. From a “Patient Autonomy” Perspective, There is
Ample Precedent and Reason for Providing No
“Therapeutic Exception” in Section 3205(a)(2)
Section 3205042) requires disclosure in all non-
emergency instances. It thus parts company with the rule
in some “patient autonomy” jurisdictions—significantly,
not in Pennsylvania*—which holds that a physician has a
limited privilege not to disclose information toa patient for
“therapeutic” reasons. The privilege is an exception to the
general duty of disclosure, and is not recognized by several
states. This exception, where it is recognized, is meant to
deal with occasions when disclosure would risk making a
patient “so ill or emotionally distraught. . as to foreclose a
rational decision, or complicate or hinder the treatment, or
perhaps even pose psychological damage to the patient.”
Canterbury v. Spence, 464 F.2d at 786. The Canterbury
court itself warned, however, that the therapeutic
exception
must be carefully circumscribed. ..for otherwise it
might devour the disclosure rule itself. The privilege
does not accept the paternalistic notion that the
physician may remain silent simply because
divulgence might prompt the patient to forego
therapy the physician feels the patient really needs.
That attitude presumes instability or perversity even
for the normal patient, and runs counter to the
foundation principle that the patient should and
ordinarily can make the choice for himself.
*Bulman v. Myers, 467 A.2d 1355 (Pa. Super. 1983); Sauso v. Shea, 390
A. 2d 259 (Pa. Super. 1978); Dunham v. Wright, 423 F. 2d 940 (3rd Cir.
1970). 40 Pa. Cons. STAT. §1301.103 (1982) added a therapeutic
privilege exception to a Pennsylvania malpractice act, but most of this
law was struck down in Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190
(1980), as an unconstitutional infringement on the cht to a jury trial.
The therapeutic exception was untouched by this, but was to be used for
the purpose of the gutted act and has not been invoked by any court as
1 for finding a general therapeutic exception in Pennsylvania
aw.
—— — ——
27
— The court concluded that the privilege to withhold
— — r only when the physician
ably foresees that the ient’ i i
— patient's reaction will be
Indeed, a number of states which em
elements of the “patient autonomy” peel Mb Pa —
recognize a “therapeutic exception.” Pennsylvania is
among them. (The others are Connecticut, Florida
Kentucky, Nevada, New Mexico, Ohio, and Rhode Island )
See Meisel & Kabnick, Informed Consent to Medical
Treatment: An Analysis of Recent Legislation, 41 U. Pitt L.
REV. 407, 457 ( 1980); Dunham v. Wright, 423 F.2d 940, 944-
45 (3rd Cir. 1970) (construing Pennsylvania law); Legen v.
Greenwich Hospital Assoc., 465 A.2d 2°4 (Conn. 1983)
(therapeutic privilege mentioned but not passed upon);
Henning v. Parsons, 95 N. M. 454, 623 P.2d 574 (1981) (no
mention of therapeutic privilege); Congrove v. Holmes, 37
Ohio Misc. 95, 308 N.E.2d 765 (Comm. Pleas 1973) (No
— te privilege); Beauvais v. Notre Dame
al, ‘ 689 (R. I.
— eens (R. I. 1978) (no mention of
Reluctance of states to reintroduce “physici
paternalism” by way of a therapeutic — 15 —
fou nded. Available evidence indicates that the physician's
decisions to withhold information are based on hearsay
rather than on actual experience with the effects of full
disclosure and that the physician’s own emotional
reluctance to confront the patient with stark diagnoses and
risks often prevents disclosure.” Note, Restructuring
Informed Consent, supra p. 25. Professor Simpson of
Northwestern University Law School states that the
traditional pessimism of courts over the ability of patients
~ make rational decisions about their medical treatment is
based on myth and conjecture. Simpson, /nformed
( onsent: From Disclosure to Patient Participation in
Medical Decisionmaking, 76 N.U.L. Rev. 172, 178 (1981)
It appears that the possibility of adverse effects arising
from disclosure has been overstated,” asserts Simpson.
Studies show that the large majority of patients do not
refuse treatment after being informed about “relatively
risky medical procedures,” that they withstand surgery
better than uninformed patients and that, on the average,
informed patients “suffer equal or lower levels of anxiety”
than patients who are not informed. Id. at 180.
In the abortion context, the psychological harm to the
patient assertedly associated with disclosure of
information about the fetus, see Planned Parenthood
League of Massachusetts v. Bellotti, 641 F.2d at 1021;
Planned Parenthood Association of Kansas City, Mo. v.
Ashcroft, 655 F.2d 848, 868 (8th Cir. 1981); Charles v.
Carey, 627 F.2d 772, 784 (7th Cir. 1980), may be
experienced far more severely after the procedure has been
irrevocably performed if the patient later learns about the
information withheld from her. Common sense suggests
that the very women who are most likely to be upset by
disclosures before the abortion, and thus those most likely
to be candidates for the therapeutic exception, are the ones
most likely to experience psychological complications after
the abortion upon learning the information withheld.
Furthermore, they are precisely the women whose choice
would most likely be different if fully informed, and thus
those most likely to be deprived of a truly autonomous
choice by the paternalistic decision not to disclose.
In the present context, it is impossible to see how
information on medical assistance benefits, paternal
support, or the existence of abortion alternatives could
possibly warrant invocation of a therapeutic exception,
even if such an exception generally existed in Pennsylvania
law. Since the information on fetal development, which is
only provided to the woman if she requests it, must be
“scientifically accurate” and “nonjudgmental” under
section 3208, it cannot be assumed as a matter of law that
the printed information will be of a nature that will
“foreclose rational decision,” “hinder treatment,” or “pose
psychological damage.” Canterbury v. Spence, 464 F.2d at
785. ;
Surely it should be within the legislature’s discretion to
decide whether, in a particular context, the adoption of a
therapeutic exception enhances or harms informed consent
based on the “patient autonomy” approach. The decision of
the Pennsylvania legislature not to include such an
exception in the Pennsylvania statute must be regarded as
embodying a position grounded in precedent, properly
responsive to the particular circumstances of abortion, and
supported by respectable opinion in scholarly debate.
CONCLUSION
In Akron, this Court held that regulations on the speech
that attends abortion must be designed to “inform the
woman's consent” rather than “to persuade her to withhold
it altogether” in order to escape the charge that such
regulations are unjustified and unduly burdensome.
Akron, 462 U.S. at 444; ef. Zauderer, 53 U.S. L. W. at 4594.
Under this standard, sections 3205(a)\(2) and 3208 should
not be declared facially unconstitutional, as the Third
Circuit did. Rather, a finder of fact should determine
whether these provisions, and the printed materials they
incorporate, would provide valuable information to women
contemplating abortion or would merely confuse and
confound their decisions. It is simply not evident on the face
of these provisions that their requirements are unjustified
or unduly burdensome, as the Third Circuit held they were.
Because this case was decided upon appeal of the District
Court's action on a preliminary injunction, there was no full
tfial on the merits to permit the development of facts
necessary to determine whether or not these provisions are
unconstitutional in their actual application.
Your amici therefore argue that, because these
provisions are not facially unconstitutional, this Court
should remand to the District Court with instructions to
determine whether section 3205(a\2) and the printed
information produced pursuant to section 3208 represent,
in their actual application, unjustified or unduly
burdensome impositions on the rights of the women
contemplating abortion under the standards of Akron and
Zauderer.
Respectfully submitted,
James Bopp, Jr.
BRAuks, Bopp, HaYNes & ABEL
191 Harding Avenue
P.O. Box 1583
Terre Haute, IN 47808-1583
(812) 238-2421
Attorney for Amici
APPENDICES
APPENDIX A
18 Pa. Cons. STAT. §3205(a 2) (1983):
§3205. Informed consent
(a) General rule. No abortion shall be performed
or induced except with the voluntary and informed
consent of the woman upon whom the abortion is to be
performed or induced. Except in the case of a medical
emergency, consent to an abortion is voluntary and
informed if and only if....
(2) The woman is informed, by the physician or
his agent, at least 24 hours before the abortion:
(i) The fact that medical assistance benefits
may be available for prenatal care,
childbirth and neonatal care.
(ii) The fact that the father is liable to assist
in the support of her child, even in instances
where the father has offered to pay for the
abortion.
(iii) That she has the right to review the
printed materials described in section 3208
(relating to printed information). The
physician or his agent shall orally inform the
woman that the materials describe the
unborn child and list agencies which offer
alternatives to abortion. If the woman
chooses to view the materials, copies of them
shall be furnished to her. If the woman is
unable to read the materials furnished her,
the materials shall be read to her. If the
woman seeks answers to questions
concerning any of the information or
materials, answers shall be provided her in
her own language.
Al
A2 A3
18 Pa. Cons. STAT. §3208 (1983): term, including any relevant inf —
§3208. Printed information possibility of the unborn child's survival. The
, materials shall be objective, nonjudgmental and
(a) General Rule.—The department shal! cause to designed to convey only accurate scientific
be published in English, Spanish and Vietnamese, information about the unborn child at the various
within 60 days after this e becomes law, the gestational ages.
following easily comprehensible printed materials: (b F The tat te 11
(1) Geographically indexed materials designed 14 — pr 0
to inform the woman of public and private to be clearly legible.
agencies and services available to assist a woman (e Free distribution.—The materials required
through pregnancy, upon childbirth and while under this section shall be available at no cost from the
the child is t, including adoption department upon request and in appropriate number
agencies, which shall include a comprehensive to any person, facility or hospital.
list of the agencies available, a description of the
services they offer and a description of the
manner, including telephone numbers, in which
they might be contacted, or, at the option of the
t, printed materials including a toll.
include the following statemen*:
“There are many public and private agencies
willing and able to help you to carry your
child to term, and to assist you and your child
after your child is born, whether you choose
to keep your child or to place her or him for
adoption. The Commonwealth of
Pennsylvania strongly urges you to contact
them before making a final decision about
abortion. The law requires that your
physician or his agent give you the
opportunity to call agencies like these before
you undergo an abortion.” ‘
(2) Materials designed to inform the woman of
the probable anatomical and ysiological
characteristics of the unborn child at two-week
gestational! increments from fertilization to full
NOTES TO TABLE OF CURRENT POSITIONS ON
THE nr
‘ALABAMA. Roberts „ Wood, 206 F. Supp. 579 (S.D.
Ala. 1962).
Pittman, 576 P. 493, 118 Ariz. 305 (1978). Under Hales,
the scope of disclosure required can be expanded by the
patient's instructions to the doctor and information may not
be withheld if it is relevant to the patient's ability to give his
or her informed consent.
‘ARKANSAS. /rgram ¢. See 406 F Supp 776 (W_D.
Ark. 1976), Fuller ». Starnes, 597 S.W.2d 88, 268 Ark. 476
(1980), ARK. Star. §34-2614.
‘CALIFORNIA. Cobbs ». Grant, 8 Cal. 3d 229, 502 Pd 1.
AS
Ab
104 Cal. Rptr. 505 (1972). California applies the “patient
autonomy” approach with respect to any potential of death
or serious harm: beyond such risks, disclosure is required
according to the “physician paternalism” rule. See also
McKinney v. Nash, 120 Cal. App. 3d 428, 174 Cal. Rptr. 642
(1981) Nelson o. Gaunt, 125 Cal. App. 3d 623, 178 Cal. Rptr.
167 (1981). CAL. HEALTH AND Sarety Cope §1704.5 (1980)
requires doctors to inform patients with breast cancer of
risks and alternative treatments Cal. BUSINESS AND
ProressionaL Cope §4211.5 provides for patient
autonomy in DMSO treatments.
to acceptable standard physician practice. See alse
Greenwell e. Gill, 660 P 2d 1305 (Colo. App. 1982)
„ Murray, 646 P.2d 907 (Colo. 1982) cites the rule in Mallett
but links the duty to disclose to the level of risk the patient is
exposed to. If the doctor knew or should have known that
risk would be a significant factor in the patient's decision,
he must disclose.
‘CONNECTICUT. Leganw vo. Greenwich Hospital
Association, 465 A2d 294 (Conn. 1983) Connecticut
adopted a patient autonomy rule in this case, without
passing upon the inerapeutic exception.
‘DELAWARE. Coleman o. Garrison, 349 A.2d 8 (Del.
1975: Dew. Cope ANN. tit. 18, §96851-6852 (Supp. 1984).
See also Robinson „ Mroz, 433 A.2d 1051 (Del. Super. Ct.
1981). Det. Cone ANN. tit. 24 §1794 (Rev. 1974) adopts a
patient autonomy rule for abortion.
*DISTRICT OF COLUMBIA. Canterbury o. Spence, 464
F 2d 772 (D.C. Cir), cert. denied, 409 U.S. 1064 (1972). See
also Crain „ Allison, 443 A.2d 558 (D.C. App. 1982)
Hartke o. McKelway, 707 F.2d 1544 (D.C. Cir, 1983).
“FLORIDA Ditlow . Kaplan, 181 So. 2d 226( Fila. Dist.
A7
Ct. App. 1965); Bowers v. Talmadge, 159 So. 2d 888 (Fla.
Dist. Ct. App. 1964); FLA. Stat. ANN. §768.45 (West Supp.
1985). Under the Florida statute, a physician may disclose
information in accordance with accepted medical practice,
but that degree of disclosure must be sufficient to permit a
reasonable individual to have a general understanding of
the procedure, acceptable alternative treatments, and any
substantial risks and hazards recognized as inherent in the
procedure. Accord Bowers v. Talmadge, but Ditlow ».
Kaplan holds that a doctor who advises a patient that a
procedure is serious and “risky” should be discharged
unless the plaintiff presents expert testimony that it is the
custom to volunteer more detailed information. See also
Ritz v. Florida Patients Compensation Fund, 436 So. 2d
987 (Fla. Dist. Ct. App. 1983); Thomas v. Berrios, 348 So. 2d
905 (Fla. Dist. Ct. App. 1977).
“GEORGIA. Young v. Yarn, 136 Ga. App. 737, 222
S. E. 2d 113 (Ct. App. 1975); Ga. Cope ANN. §§88-2901 to
-2907 (1981); not applicable to abortion and sterilization.
See also Padgett v. Ferrier, 323 S. E. 2d 166(Ga. App. 1984);
Hyles u. Cockrill, 312 S.E.2d 124, 169 Ga. App. 132 (1983);
Charles v. State, 307 S.E.2d 701, 167 Ga. App. 803 (1983).
HAWAII. Nishi v. Hartwell, 52 Hawaii 188, 473 P.2d
116 (1970); Hawau Rev. Stat. §§671-3 (1976). The statute
fails to specify the standard by which the adequacy of the
physician’s disclosure is to be measured. The statute
empowers the state board of medical examiners to
establish these standards. Nishi appears to apply a
“physician paternalism” standard. Nevertheless, there is
language in the opinion which suggests that the court is
adhering to a “full-disclosure” patient-autonomy rule with
the therapeutic exception.
“{DAHO. LePlelly v. Grefenson, 101 Idaho 422, 614 P.2d
762 (1980); DANO Cope §18-609 (Supp. 1984), §§39-4301 to
-4306 (1977). Under LePlelly, though the “physician
paternalism” rule is adopted, the court held that when
relatively complicated surgery is involved a physician
A8
must disclose known risks of death or serious bodily injury.
Although §§39-4301 to -4306 adopt a “physician
paternalism” approach, they do not apply to abortion
procedures. A “patient autonomy” approach to abortion is
provided in §18-609.
“J LLINOIS. Green v. Hussey, 127 Ill. App. 2d 174, 263
N.E.2d 156 (App. Ct. 1970); ILL. REV. STAT. ch. 38, §81-23.2
(1981). Though Green adopts the “physician paternalism”
rule, Illinois statutory law adopts the “patient autonomy”
approach for abortion procedures. See also Magana v. Elie,
439 N.E.2d 1319, 108 III. App. 3d 1028, 64 III. Dee. 511
(1982); Guebard v. Jabaay, 452 N.E.2d 751, 117 Ill. App. 3d
1, 72 Ill. Dee. 498. (1983).
iSINDIANA. Joy v. Chau, 377 N.E.2d 670 (Ind. Ct. App.
1978). The Joy court held that a physician is to make a
reasonable disclosure to his patient, but failed to adopt
either of the two rules. See also Revord v. Russell, 401
N.E.2d 763 (Ind. App. 1980); Kranda v. Houser-Norborg
Medical Corp., 419 N.E.2d 1024 (Ind. App. 1981).
OWA. Grosjean v. Spencer, 258 Iowa 685, 140 N.W.2d
139 (1966); lowa Cope ANN. §147.137 (West Supp. 1982-
83). Prior to the adoption of the statute, lowa followed the
“physician paternalism” rule. Though the statute cannot be
classified as following either of the two rules, it does
require the physician to disclose the nature and purpose of
the proposed treatment and the known risks if they are
included in a specified list of serious dangers. See also
Cowman v. Hornaday, 329 N.W.2d 422 (lowa 1983). The
court held the “professional rule” inapplicable in this case
and applied the “patient rule.” Cowman involved elective
surgery—“a vasectomy for socioeconomic reasons.”
‘KANSAS. Natanson v. Kline, 186 Kan. 393, 350 P.2d
1093 (1960); Lindquist v. Ayerst Laboratories, Inc., 607 P.2d
1339, 227 Kan. 308 (1980).
KENTUCKY. Holton v. Pfingst, 534 S.W.2d 786 (Ky.
1975); Bennett v. Graves, 557 S.W.2d 893 (Ky. Ct. App.
A9
1977); Ky. Rev. Svat. ANN. §§304.40-320 (Baldwin 1981).
Bennett and Holton adopt the “physician paternalism” rule.
However, the statutory provisions adopted after Holton
require that information be provided to the patient such
that “a reasonable individual...would have a general
understanding of the procedure and...acceptable
alternative procedures...and substantial risks and
hazards inherent in the proposed treatment.. See also
Ky. Rev. Start. §§311.726, 311.729 (1983) (informed
consent statute for abortion requiring physician to divulge
information on risks, fetal development, and alternatives.)
9 OQUISIANA. Perele v. St. Paul Fire and Marine Ins.
Co., 349 So. 2d 1289 (La. Ct. App. 1977); La. Rev. Star.
ANN. §40:1299.40 (West 1977). See also LaCaze v. Collier,
434 So. 2d 1039 (La. 1983), which applies the patient
autonomy standard of La. Rev. Stat. ANN. §40:1299.40
(West 1977). A measure of patient autonomy applies to
abortion as well under LA. Rev. STAT. §40:1299.35.6 (1977).
M AINE. Woolley v. Henderson, 418 A.2d 1123 (Me.
1980); Me. Rev. Stat. ANN. tit. 24, §2905 (Supp. 1984-
1985). Maine has an informed consent statute for abortion
requiring the physician to inform the patient of the nature
of the procedure, gestational age, risks, and alternatives.
Me. Rev. STAT. ANN. tit. 22 §1599 (1984-1985).
“\MARYLAND. Sard v. Hardy, 281 Md. 432, 379 A.2d
1014 (Ct. App. 1977).
“MASSACHUSETTS. Schroeder v. Lawrence, 372
Mass. 1, 359 N. E. 2d 1301 (1977); Haggerty v. MeCarthy, 344
Mass. 136, 181 N.E.2d 562 (1962); Harnish v. Childrens
Hospital Medical Center, 489 N.E.2d 240, 387 Mass. 152
(1982); Halley v. Birbiglia, 458 N.E.2d 710, 390 Mass. 540
(1983). Under Halley, the physician must divulge
information sufficient to enable a patient to make an
informed judgment about whether to give or withhold
consent. Harnish appears to commend Canterbury but
balances the patient's right to know with the burden to
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disclose on the doctor. Mass. ANN. Laws ch. 112 88120, 128
(Michie / Law. Coop. 1985) require the physician to inform
the patient of risks of and alternatives to abortion.
“MICHIGAN. Roberts v. Young, 369 Mich. 133, 119 N.W.
2d 627 (1963); Marchlewicz v. Stanton, 213 N.W.2d 317, 50
Mich. App. 344 (1973).
“MINNESOTA. Plutshack v. University of Minn.
Hospitals, 316 N.W.2d 1 (Minn. 1982); Cornfeldt v. Tongren,
262 N.W. 2d 684 (Minn. 1977); MINN. STAT. ANN. §144.651
(West Supp. 1982). See also Reinhardt v. Colton, 337
N.W.2d 88 (Minn. 1983).
SMISSISSIPPI. Ross v. Hodges, 234 So. 2d 905 (Miss.
1970).
“MISSOURI. Aiken v. Carey, 396 S. W. 2d 668 (Mo. 1965);
Kichelberger v. Barnes Hospital, 655 S. W. 2d 699 (Mo. App.
1983); Kinser v. Elkadi, 674 8.W.2d 226 (Mo. App. 1984).
Missouri has undertaken to safeguard patient autonomy
and “truly informed consent” where abortion is involved.
Mo. ANN. STAT. §188.039 (Vernon) requires physician
disclosure of risks, gestational age of fetus, and alternatives
to abortion.
“MONTANA. Negaard v. Estate of Feda, 152 Mont. 47,
446 P.2d 436 (1968); Liera v. Wisner, 557 P.2d 805 (Mont.
1976); Collins v. Itoh, 503 P.2d 36 (Mont. 1972). MONT. (Vor
ANN. 5020-104. 50-20-1086 provides an exception for
abortion to Montana’s physician paternalism rule. Doctors
must provide information on abortion procedures,
consequences, and alternatives.
“NEBRASKA. No case law. Nes. Rev. Stat. §44-2816
(1978).
„NEVADA. Corn v. French, 71 Nev. 289, 280 P.2d 173
(1955); Nev. Rev. Stat. §41A.110.120 (1981). Under the
Nevada statute, neither the “physician paternalism” nor
“patient autonomy” rule is adopted. Instead the statute
delineates information that must be provided for patient
All
consent. This includes the general nature of the procedure
to be undertaken, its risks, and any alternative treatments
feasible. To that extent, the statute follows the “patient
autonomy” rule.
“NEW HAMPSHIRE. Folger v. Corbett, 118 N. H. 737,
394 A.2d 63 (1978); N.H. Rev. Stat. ANN. §507-C (Supp.
1981). Declared void by the Supreme Court of New
Hampshire in Carson v. Maurer, 120 N.H. 925, 424 A.2d
825 (1980).
“NEW JERSEY. Kaplan v. Haines, 96 N.. Super. 242,
232 A.2d 840 (1967), aff'd 51 N.J. 404, 241 A.2d 235 (1968);
Calabrese v. Trenton State College, 392 A.2d 600, 162 N.J.
Super. 145 (1978).
®NEW MEXICO. Henning v. Parsons, 95 N. M. 454, 623
P.2d 574 (1980).
SNEW YORK. Karisons , Guerinot, 57 A.D.2d 73, 394
N.Y.S.2d 933 (App. Div. 1977); N.Y. Pute HEALTH Law
§2805-d (Consol. Supp. 1984). See also Nisenholtz v. Mount
Sinai Hospital, 483 N. V S. 2d 568 (N.Y. Sup. Ct. 1984);
Bellier v. Bazan, 478 N. . S. 2d 562 (N.Y. Sup. Ct. 1984).
Applying §2805-d, the N isenholtz court held the physician
must disclose information that would “enable a reasonably
prudent patient to make a knowledgeable evaluation of
whether to submit to” a procedure.
“NORTH CAROLINA. Butler v. Berkeley, 25 N.C. App.
325. 213 S.E.2d 571 (Ct. App. 1975); N.C. Gen. Start. §90-
21.13 (1981). Under the statute, a disclosure consistent with
general medical practice is sufficient only if such
disclosure gives the patient a general understanding of the
treatment and its recognized risks. See also Azzolino +.
Dingfelder, 322 S8. E. 2d 567 (N.C. App. 1984); Brigham vr.
Hicks, 260 S. E. A 435 (N.C. App. 1979); Nelson ¢. Patrick,
326 S.E.2d 45 (N.C. App. 1985).
“NORTH DAKOTA. Walker «. North Dakota Kye
Clinic, 415 F. Supp. 891 (D.N.D. 1976), N.D. Cent. Cope
Al2
federal court noted in Lemke, the North Dakota Supreme
Court, while discussing both the patient autonomy and
physician paternalism options in Winker, refused to
explicitly adept either standard.
*QOHIO. Congrove v. Holmes, 37 Ohio Misc. 95, 308
N.E.2d 765 (Comm. Pleas 1973); Onto REV. Cobb ANN.
§2317.54 (Baldwin Supp. 1984). See also Siegel „ Mt. Sinai
Hospital of Cleveland, 403 N.E.2d 202, 62 Ohio App. 2d 12
(1978). There is no therapeutic exception in the relevant
Ohio cases.
"OKLAHOMA. Lambert v. Park, 597 F.2d 236 (10th Civ.
1979). In Lambert, the Tenth Circuit adopted the “patient
autonomy” rule for Oklahoma. After discussing several
reasons for adopting the “patient autonomy” approach, the
court said:
We have chosen between the tests only because the
Oklahoma Court has indicated it would do so. The
Court need not, however, consider itself so limited. The
better practice would be to adopt a rule allowing for
the application of whichever test best comports with
the theories of the parties and the evidence produced
during the trial.
Lambert u Park, 597 F. 2d at 199. See also Scott vr. Bradford,
606 P.2d 554 (Okla. 1979). The Oklahoma Supreme Court
explicitly adopted the patient autonomy standard in the
Scott case, although it provided for a therapeutic exception.
“OREGON. Holland v. Sisters of St. Joseph of Peace, 270
Or. 129, 522 P.2d 208 (1974; Or. Rev. Stat. §677.097
(1981). See also Creasy v. Hogan, 617 P.2d 1377, 289 Or. 733
(1980). Creasy applied and supplemented the holding in
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Holland, providing a therapeutic exception to the general
rule of patient autonomy.
“PENNSYLVANIA. Jeffries v. MceCague, 242 Pa.
Super. 76, 363 A.2d 1167 (1976); Cooper v. Roberts, 220 Pa.
Super. 260, 286 A.2d 647 (1971); Pa. Stat. ANN. tit. 40,
§1301.103 (Purdon Supp. 1982). See also Defulvio v. Holst,
414 A.2d 1087 (Pa. Super. 1979). There is no therapeutic
exception in Pennsylvania.
“PUERTO RICO. Torres Perez v. Hospital Doctor
Susoni, 95 P. R. R. 845 (1968).
“RHODE ISLAND. Wilkinson v. Vesey, 110 RI. 606,
295 A.2d 676 (1972); Beauvais v. Notre Dame Hospital, 387
A.2d 689 (RI. 1978). The cases applying the patient
autonomy rule make no mention of the therapeutic
exception.
“SOUTH CAROLINA. Hook . Rothstein, 316 S.E.2d
690 (S.C. App. 1984).
“SOUTH DAKOTA. Cunningham „ Yankton Clinic,
262 N.W.2d 508 (S. D. 1978). To date, no standard has been
enunciated in South Dakota.
“TENNESSEE. Longmire „ Hoey, 512 S.W.2d 307
(Tenn. Ct. App. 1974); Tenn. Cope ANN. §29-26-118 (Supp.
1984). See also German o. Nichopoulos, 577 S.W.2d 197
(Tenn. Ct. App. 1978). Tennessee requires the physician to
inform the patient of the risks of and alternatives to
abortion as well a the age of the fetus. Tenn. Cope ANN.
§39-4-202 (1984 Supp.).
“TEXAS. Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974):
Tex. Rev. CW. Stat. ANN. art. 4590, §§6.02-.07 (Vernon
Supp. 1982), implemented by 3 Tex. Reg. 4293 (1978). See
alse Peterson ¢. Shields, 652 S.W.2d 929 (Tex. 1983). Until
the medical disclosure panel, created by statute.
promulgates standards of disclosure, doctors must disclose
information that would influence a reasonable person.
Barclay +. Campbell, 683 S.W.2d 498 (Tex. Ct. App. 1984)
Al4
provides for an exception to this reasonable person rule
where disclosure is not medically feasible.
“UTAH. Ficklin v. McFarlane, 550 P.2d 1295 (Utah
1976); UTAH CODE ANN. §78-14-5 (1977). See also Reiser v.
Lohner, 641 P.2d 93 (Utah 1982); Nixdorf v. Hicken, 612
P.2d 348 (Utah 1980). UTAH Cob ANN. §76-7-305.5
requires informed consent for abortion. The physician
must inform the patient of the procedure, risks,
alternatives, and physical characteristics of a normal
unborn child.
“VERMONT. Small v. Gifford Memorial Hospital, 133
Vt. 552, 349 A.2d 703 (1975); VT. STAT. ANN. tit. 12, §1909
(Supp. 1981). Under Small, the Vermont Supreme Court
adopted the “patient autonomy” approach. The statute,
however, though prescribing the elements of intormation
that must be disclosed—i.e. the alternatives to the
treatment or diagnosis and the risks and benefits
involved—incorporates these requirements in a “physician
paternalism” approach. See also Perkins v. Windsor
Hospital Corp., 455 A.2d 810 (Vt. 1982).
VIRGINIA. Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783
(1976). Va. Cop §18.2-76 (1982) (statute requiring
informed consent for abortion).
“WASHINGTON. Miller Kennedy, 11 Wash. App.
272, 522 P.2d 852 (Ct. App. 1974), d. 85 Wash. 2d 151,
530 P.2d 334 (1975); WasH. REV. CoDE ANN. §§7.70.050-
.060 (Pocket Part 1985). See also Adams v. Richland Clinic,
Inc. 681 P.2d 1305, 37 Wash. App. 650 (1984); Holt vr.
Nelson, 523 P.2d 211, 11 Wash. App. 230(1974). These cases
establish a lay standard of disclosure with a therapeutic
exception.
WEST VIRGINA. Cross v. Trapp, 294 S.E.2d 446 (W.
Va. 1982), adopts a “patient need” standard with a
therapeutic exception.
Al5
SIWISCONSIN. Trogun v. Fruchtman, 58 Wis.2d 569,
207 N.W.2d 297 (1973); Searia v. St. Paul Fire & Marine
Insurance Co., 227 N.W.2d 647 (Wis. 1975).
®WYOMING. Govin v. Hunter, 374 P.2d 421 (Wyo. 1962);
Stundon v. Stadnick, 469 P.2d 16 (Wyo. 1970).
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