(Mis)Informed Consent:Exposing a Prevailing Injustice in Access to Abortion

By Deborah E. Klein, M.D.,

based on questions posed by Andrea Greenstein

As a physician and longtime reproductive health advocate, I have been disturbed and incensed by the increasing number of states that require special mandated counseling prior to an abortion. Allowing legislators to insert their own scripts into informed consent counseling subverts a standard medical practice that is an essential component of every medical procedure. So I sat down with Andrea Greenstein, my Legal Voice work group colleague, to answer some questions about informed consent.

One of the major concerns surrounding anti-choice legislation has to do with informed consent. As an advocate for reproductive health and justice, what are some things I should keep in mind when reading about recent attacks on abortion access and services?

Informed consent is based on truth. The provider-patient relationship is based on trust. Truth and trust go out the window when state-mandated misinformation is injected into abortion counseling.

Informed consent is a cornerstone of medical ethics, and is required by law, for all medical procedures in all 50 states. Informed consent requires that patients and their providers discuss the benefits and risks of a medical procedure in order to arrive at a sound medical decision.

The principles of informed consent include:
1. The provider must disclose all relevant medical information needed to make the decision, including risks, benefits, expected outcomes and alternatives
2. The patient must have the ability to understand and process the information
3. The patient must make the decision free from coercion or unfair incentives

Women’s health services, including abortion, seem to be treated differently than most other medical procedures. Why is that? How might additional restrictions affect the relationship between a healthcare provider and her patient?

Under the guise of informed consent, many states have enacted additional requirements unique to abortion. In some cases the required information is outdated, biased, or false—some states require women seeking abortions be told that personhood begins at conception, be provided with information on the ability of a fetus to feel pain, or be presented with inaccurate medical information, such as:

• Alaska, Kansas, Mississippi, Oklahoma and Texas require that a woman seeking an abortion be told there is a possible link between abortion and breast cancer.

• Arizona, Kansas, South Dakota, Texas and West Virginia require that a woman seeking an abortion be told there is a link between abortion and infertility.

• Kansas, Michigan, Nebraska, North Carolina, South Dakota, Texas, Utah and West Virginia require that that a woman seeking an abortion be told there is a link between abortion and long-term psychological harm.

All these assertions are inaccurate.

Legislators without medical expertise can require that providers deliver medically inaccurate materials, undermining the provider-patient relationship, and putting patients at risk for making medical decisions based on false information. These special laws, required only for abortion procedures, not only provide deceptive information, but are an attempt to disrupt and invalidate the provider-patient relationship, and to undermine the integrity of the medical and scientific evidence that informs medical decision making.

Is there any reason abortion procedures should be subject to different informed consent requirements?

There is no reason that abortion procedures should be singled out for unique informed consent requirements. Anti-choice forces rely on the fact that the public may be unaware of the rigorous informed consent protocols already in place. Since these laws apply only to women, there is the suggestion that women need special protections with regard to medical decisions, and do not have the capacity to engage in medical decision making. State-mandated counseling is further intended to suggest that clinicians might not provide accurate information to patients without specific legislation requiring them to do so. In fact, informed consent is a process that is tailored to each procedure, and the clinician who will perform the procedure is the one who has the greatest expertise to appropriately counsel the patient.

As a women’s healthcare provider, what is your approach to building trust with patients and helping them make decisions about their health?

Shared decision making is a relatively new concept, and is at the heart of the patient-provider relationship. It’s a collaborative process that allows patients and their providers to make health care decisions together, taking into account the best scientific evidence available, as well as the patient’s values and preferences. The patient is placed at the center of the decision making process; patient preferences are honored, and the process is an open dialogue that enhances patient autonomy and confidence.

How can women’s health advocates frame informed consent and abortion counseling as a problem? What is your opinion on these requirements as a healthcare provider who is familiar with advocating for your patients’ health and well being, and helping them make healthcare decisions?

The requirement for unique informed consent counseling for abortion is different from the counseling required for all other medical procedures. It distorts the informed consent process, imbuing it with often medically incorrect, politically driven, coercive, discriminatory, and dangerous statements. This violates medical ethics, and may result in women making decisions that compromise their health.

As a healthcare provider, I believe healthcare decisions should be informed by medical evidence, using standard informed consent and shared decision making processes that protect patients and help them arrive at decisions that are right for them. Politicians should have no authority to obstruct safe medical practice and no right to interfere in the relationship between the provider and the patient.

Deb Klein has practiced family medicine in Seattle for 21 years, and serves on the Legal Voice Reproductive Justice Work Group.

Andrea Greenstein is a women’s health advocate, Seattle young professional, and graduate of the University of Washington where she studied Law, Societies, and Justice. Andrea volunteers with Legal Voice on the Reproductive Justice Work Group.

My Health Care is Not a Hobby:Legal Voice Interns Take to the Streets

Legal Voice's interns, clockwise from top left:
Kelsey Martin, Margaret Hazuka, and Alyssa Sappenfield.  

By Margaret Hazuka

 

In the aftermath of the Hobby Lobby decision, one has to wonder how we got here. How did we get to the point where “closely held corporations” can make completely false statements about birth control (no, IUDs do NOT cause abortion), and SCOTUS would rely on those statements to deny countless women the right to control their own health care choices? How is it that, in the 21st century, so much is misunderstood about birth control and the women who use it? We all remember Sandra Fluke’s run-in with Rush Limbaugh after admitting she used birth control. More recently, we witnessed the conservative backlash toward Rep. Lucy Flores after owning the fact that she just wasn’t ready for a child at age 16. We live in a culture that shames women for their reproductive choices, including using contraceptives that 99% of sexually active women (married and unmarried) currently use or have used, many for reasons wholly unrelated to preventing pregnancy.

There is a reason Sandra Fluke and Rep. Flores stand out for speaking up. Women are taught to be embarrassed and secretive about their sexuality and their reproductive decisions. We are afraid of the judgments that are associated with birth control, and afraid of men who think that women who use it must do so in order to sleep around.

Maybe if women are open about their contraceptive use, we can transform the conversation. It has worked before—breast cancer was largely stigmatized until survivors like Shirley Temple Black and Betty Ford began speaking up about their experiences and encouraging other women to take action. There was a culture shift. Women realized they were not alone, the reality grew harder to sweep under the rug, and the general public became much more accepting once they were forced to acknowledge the fact that someone close to them had or was at risk for breast cancer. Our cultural views of breast cancer changed by women speaking about their experiences publically.

By that measure, talking publically about birth control and the reasons we take it just might convince others that not all women who use contraceptives are sluts or prostitutes (sorry, Rush). At least that is what I and the other female interns from Legal Voice decided when discussing the odious Hobby Lobby decision one afternoon. So last weekend, the summer interns performed an experiment—in the same vein as the BuzzFeed post and Lena Dunham’s tweet, we made t-shirts announcing our personal reasons for using birth control to demonstrate that women shouldn't be ashamed or uncomfortable about their health care choices:

• Kelsey: I use birth control because I don't want kids (yet)
• Margaret: I use birth control because I am in charge of my own uterus
• Alyssa: I use birth control to keep my PCOS in check
  
  (The back of each shirt said "My health care is NOT a hobby")

Our original intention was to provoke reactions (like those that occurred in response to the BuzzFeed post) and document them. We wandered through the Seattle tourist sites, and although no one directly confronted us, we got our fair share of stares that ranged from approving to reproachful. But upon reflection, what really informed the experience was not the reaction of others, but my reaction to them. At first, all I could focus on was other people. Did he notice? Did she grimace? Did that mother just avert her teenage daughter’s eyes? But once I started getting used to the attention, I had a realization—the point of speaking out isn’t just about making a statement to everyone else; it also serves as a way for us to take personal ownership of our choices, regardless of external pressure or judgment. It is about knowing that I shouldn’t be ashamed, even if media pundits, politicians, and employers insist otherwise. It was empowering to walk around Seattle knowing that my choices were my own, despite the attempts of business and politics to get in my way. And recognition of that empowerment will hopefully have the side effect of changing others’ minds. Once it is a mainstream part of our society to share our reproductive choices without shame, it will be impossible for others to ignore our voices.


Margaret is a legal intern at Legal Voice and a rising second-year student at Harvard Law School. She hopes to help shatter all of the glass ceilings and contribute to a future of gender equality.

That Was Us! Access to Abortion Clinics with Jill Bowman

By Jill Bowman

This year marks Legal Voice's 35th anniversary year. The
 That Was Us! series celebrates where we've been and what we've accomplished by creating a patchwork of voices from the people who helped us along the way.

More than 20 years ago, just before Thanksgiving, Lisa Stone talked me into “helping out” on a pro bono matter for the organization then known as the Northwest Women’s Law Center. Back then, Lisa was an associate at my law firm, Stoel Rives LLP, and I was a junior partner. Today, Lisa serves as the Executive Director of Legal Voice.

Anyway, back to the story. The Law Center had learned that protesters calling themselves “Operation Rescue” were planning to block access to abortion clinics in King County. The Center wanted to do what it could to prevent that interference. So, on behalf of a coalition of health care providers, organizations, and individuals who wanted to protect the right of women to obtain legal abortions, we brought suit and obtained a temporary restraining order from the King County Superior Court.

That was just the beginning—little did I know that this matter would end up absorbing much of my time over the next few years, as I assisted Lisa in her supervision and coordination of a statewide effort to protect health care providers and their patients. The case had a number of twists and turns—we were removed to federal court, we pursued civil contempt sanctions, we defended the sanctions before the Ninth Circuit of Appeals (Aradia Women’s Health Center v. Operation Rescue), and we negotiated settlements. Throughout the process, we were assisted by lawyers at other firms in Seattle and all around the state. It was an amazing collaborative effort and, in the end, we did manage to stop the protesters from blocking access to clinics (through the legal process and, eventually, through state legislation). When I look back, I am proud of what we were able to accomplish.

 

 

Jill Bowman is a partner of the law firm Soel Rives LLP, where she handles federal and state court cases and appeals involving a broad range of corporate and commercial matters, including state unfair practice laws, business torts, and labor and employment issues. Jill was a joint recipient of the Northwest Women's Law Center Founder's Award in 1990 for her work in Aradia Women's Health Center v. Operation Rescue.



That Was Us! The Jafar Case with Brian Buckley

By Brian Buckley

This year marks Legal Voice's 35th anniversary year. The
 That Was Us! series celebrates where we've been and what we've accomplished by creating a patchwork of voices from the people who helped us along the way.

In 2013, I had the privilege of partnering with Legal Voice to advance the rights of indigent litigants, or impoverished persons engaged in a lawsuit, to enjoy equal access to the Washington courts. Our client, Abeda Jafar, filed an action in Snohomish County for a parenting plan with her child’s father, in part because she feared for the child’s safety. Ms. Jafar’s annual income was $4,620—just 30% of the federal poverty guideline for a family of two—and she was eligible for a free legal services attorney because of her low income. Yet when Ms. Jafar asked the Snohomish County Superior Court to waive her filing fees, it granted only a partial waiver of the mandatory fees and required her to pay $50 in surcharges within 90 days, or risk dismissal of her case reinstating the possibility of harm to her or her child. We appealed Ms. Jafar’s case directly to the Washington Supreme Court, seeking a ruling that neither Ms. Jafar nor any indigent person should have to pay any fees to get through the courthouse doors.

On May 23, 2013, the Supreme Court issued a unanimous ruling that Washington courts cannot charge indigent litigants fees or costs associated with filing a case. In strong language, the Court stated that the court rule at issue, General Rule (GR) 34, “was adopted to ensure that indigent litigants have equal access to justice. Any fees required of indigent litigants are invalid and must be waived under the rule.” The Court recognized further that constitutionally-based “principles of due process and equal protection require that indigent litigants have access to the courts. Once the trial court determines that a litigant is indigent, the rule then requires a complete waiver in order to allow access to the courts. No language in the rule exists supporting a grant of a partial waiver for indigent litigants, nor...could such a decision be supportable.

The Supreme Court’s decision is a victory for equal justice and will have a profound impact on the most vulnerable members of our community. It is now clearly established that Washington’s courts are open to all, regardless of their ability to pay.

I was honored to work with the amazing, passionate staff at Legal Voice to pursue equal justice, and the result in Jafar was my proudest professional achievement. Thank you, Legal Voice!

Brian Buckley is an attorney with Fenwick & West, LLP, where he focuses his practice on defense and prosecution of high-stakes commercial litigation. Throughout his career, Brian has devoted substantial time to pro bono work, focusing in particular on issues affecting women, children, and the poor. If you would like to contribute a story about how Legal Voice has affected your life, please contact info@legalvoice.org.

(Don't) Walk This Way: Experiencing Street Harassment During Pride Month

By Alyssa Sappenfield

 

Rainbow flags generally dot the city of Seattle like freckles in the summertime, but they are even more abundant during Pride Month, when the support of the city can be felt just by walking down the street. As I celebrated Seattle Pride, I realized how nice it was to be in a city that openly welcomes and accepts a secret that I didn’t dare speak of for a long, long time. If I had been paying attention to myself and listening to that whisper I kept trying to block out, I would have saved a few years of self-doubt, shame, and careful pretending. The difference from then and now, especially here in Seattle, is something of a wonder. Even outside of this bubble, the country is changing.

Regrettably, things aren’t always rosy. Twice during Pride weekend, I experienced verbal street harassment specifically because I was holding my partner’s hand while walking in the city. Like myself, she is a queer, cis woman. The first time it happened, I blew it off, only briefly annoyed. It was something crude, said quickly, but I could feel his eyes lingering. I wasn’t paying too much attention though—my partner was saying something funny. A couple hours later, a second stranger decided to make sexual remarks just as we were passing by, again holding hands. He continued to comment, not too loudly but just enough to for me to hear, until we reached the intersection to cross the street. I didn’t say anything to either harasser. My past experiences with street harassment have made me feel less safe and very vulnerable in those situations, so my first instinct was simply to get away.

We walked a few more blocks and I began to feel less anxious. But then I saw a rainbow flag and grew angry. For a brief moment, I forgot the ugliness that others sometimes impose as a reaction to my sexual orientation. These remarks were a rude reminder that, even in a city like Seattle, equality is farther than some might argue. How dare this person comment on my relationship? Was it too much to ask to enjoy my day without a stranger’s sense of entitlement and lewd remarks? My relationship does not deserve to be objectified for their entertainment. The sense of pride that I felt walking around the city allowed me to drop my guard for one facet of my identity, and that acceptance I felt quickly diminished. But the experience also reminded me of how my queer identity intersects with my identity as a woman.

As a young woman, I am always aware of the possibility of harassment when I walk outside. Our bodies are sexualized and viewed as fair game, open to commentary and cajoling for a phone number or date. As a queer woman, street harassment tends to result in a unique kind of antagonism. Our sexuality becomes personal to harassers. Women walking with their same-sex partners are fetishized as some ultimate fantasy playing out in public. We become a novelty to gawk at or fix. I can’t count the times I’ve been disgustingly asked for a “private show” or told that I just need a man to show me what they think I’m missing. For more masculine perceived women, this can mean “corrective” violence for not conforming to hegemonic standards of womanhood.

My experience is not the only version of unwanted interactions. Oppression is complex and surfaces in different ways depending on the place and circumstances. The organization Stop Street Harassment (SSH) recently published a national survey showing that 65% of women and 25% of men surveyed had experienced street harassment. A couple of other key findings include: persons of color, lower-income people, and the LGBT-identified were disproportionately affected by street harassment overall (studies also show transgender individuals face particularly high rates of public discrimination); most people change their lives in some way because of the experience; street harassment happens in different degrees of verbally and physically aggressive forms; and it occurs in more kinds of public spaces than you might think.

Street harassment is harmful emotionally, psychologically, and to equality. It amplifies the violence experienced by marginalized identities on a daily basis, perpetuating oppression and preventing them from thriving. 

I’ve definitely policed my own behavior to avoid attention. I wish I had the courage and presence of mind to react differently. You can find tips for the future here.
 

 

Alyssa Sappenfield is a legal intern at Legal Voice and a rising third-year student at Lewis & Clark Law School. Alyssa received her Bachelor's from the University of Notre Dame in Sociology and Psychology, with a focus on social movements. She is obsessed with digesting culture and substantive equality for marginalized groups. 

The Culture Club: Evaluating Campus Culture's Impact on Sexual Assault

By Kelsey Martin

It can be easy to distance yourself from news reports of gun violence and threats when they happen across the country. But when it happens at the school you call home, it feels very real and very dangerous.

When I saw that a University of Washington student was arrested for his online threats to kill women, I felt deeply shaken. His comments responding to the recent UC Santa Barbara killings were extremely disturbing. He promised he would be the next mass killer but he would get it right and kill only women—and more of them. Luckily, he was apprehended before he could act on these threats, and he’s now been charged in federal court for his interstate threats to women.

This arrest is just the latest event calling attention to the culture of violence that pervades college campuses. Under Title IX, educational institutions have a legal responsibility to prevent and respond to sexual assault on campus. However, statistics indicating that one in five women are sexually assaulted while in college suggest that many schools are failing to keep their students safe.

To combat this discrepancy between the law and students’ real life experiences, President Obama recently created the White House Task Force to Protect Students from Sexual Assault, which released its first report in April. Additionally, the Department of Education is currently investigating 55 colleges across the country—including University of Idaho and Washington State University—for the way they’ve handled sexual assault cases. And the Department of Justice recently reached an agreement with the University of Montana that will require local police to improve their response to sexual assault cases. With the federal government getting serious about enforcing Title IX, the movement to end gender violence on college campuses may be closer to a solution than ever before.

But where does that leave the individuals currently attending higher education institutions? What role can students play in creating a safer environment in which they are not afraid of school shootings or campus assault?

In my opinion, the answer lies in the creation of a college culture. Even as women become equal members of college communities, campus culture still reinforces discrete roles for men and women. From "CEOs and Corporate Hos"“ themed parties to the notion that many college females are just seeking eligible bachelors rather than bachelor’s degrees, college students are constantly bombarded with the message that women should be beautiful, available objects for male consumption, even while furthering their education. At the same time, the fanaticism over college sports reinforces societal conceptions of masculinity: men should be strong, violent, and desired by women. Most colleges don’t teach male and female students how to form healthy, expressive relationships with each other; instead, the culture glorifies the chase of casual sex without lessons on establishing boundaries or enthusiastic consent. Together, these societal scripts create a dangerous environment in which women and men who do not conform are at risk of violence.

While institutional memory may seem to be a large hurdle to overcome, students have a tremendous amount of power to inform the culture around them. They don’t have to stop going to college football games or dressing up for Halloween parties, but they can be mindful about the impact their choices make on the community around them. By always communicating about consent, speaking up about dangerous behaviors, and challenging assumptions about gender roles, students can contribute to a campus that is safe for all men and women.


Kelsey Martin is a legal intern at Legal Voice and a rising third-year student at the University of Washington School of Law. She has big dreams of single-handedly dismantling the patriarchy through her legal career.

Photo by Joe Mabel