Professors: ‘Informed Consent’ No Excuse to Violate First Amendment.
Earlier this week, Arizona enacted a law requiring physicians to tell patients undergoing a medical abortion that the process may be reversible, a conclusion unsupported by medical science.
In a New England Journal of Medicine “Perspective” article, Wendy Mariner and George Annas, professors of health law, bioethics, and human rights at the School of Public Health, challenge the trend among states to compel physicians to present the state’s point of view in the guise of informed consent.
“The First Amendment was adopted to keep the government from controlling what people, including physicians, say. Protection of patients’ rights should not be used as a pretext to promote partisan political purposes in the examining room,” write Annas and Mariner, also School of Law professors.
The duo dissects a recent decision by the US Court of Appeals for the Fourth Circuit that struck down the so-called “Display of Real-Time View Requirement,” which required that North Carolina physicians display and explain the “presence, location, and dimensions” of an unborn child inside a woman’s uterus and offer the patient “the opportunity to hear the fetal heart tone.” The patient could try not to look or listen, but the physician was required to speak. Penalties for noncompliance included liability for damages and disciplinary action by the North Carolina Medical Board.
The appeals court concluded that the statute violated the First Amendment’s prohibition on state-compelled speech, calling the required display and explanation “ideological,” in that it sought to discourage women from having abortions.
“The First Amendment protects both the freedom to speak and the freedom not to speak. However, there are limits to both freedoms,” Mariner and Annas write.
They also cite another decision, last July, in which the Court of Appeals for the Eleventh Circuit upheld a Florida law that prohibits physicians from asking patients about firearms in the home, finding that the prohibition did not violate physicians’ First Amendment rights when the inquiry was “unnecessary to a patient’s care.” In that decision, the court noted that a patient in an examination room is in a “position of relative powerlessness.”
Mariner and Annas said the cases present “two radically different views of informed consent: the traditional view that rational decision-making and patient autonomy are best protected by allowing physicians to tailor disclosures to their patients’ needs and preferences; and the view that government can use informed consent to encourage specific decisions by regulating what tests physicians must perform, what information they must present, and what information they cannot seek.”
Laws prescribing exactly what physicians must say, regardless of patients’ needs or preferences, “make a mockery of informed consent and patient autonomy,” they conclude.
The full article and an audio interview with Mariner are available at www.nejm.org.
Submitted by: Lisa Chedekel