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Abstract

If we slightly change the facts of the story about the discouraging doctor, it becomes a story that happens every day. Abortion patients face attempts to discourage them from terminating their pregnancies like those the imaginary doctor used, as well as others-and state laws mandate these attempts. While the law of every state requires health care professionals to secure the informed consent of the patient before any medical intervention, over half of the states place additional requirements on legally effective informed consent for abortion. These laws sometimes include features that have ethical problems, such as giving patients deceptive information. Unique informed consent requirements for abortion are depicted by their supporters as necessary for fully informed and voluntary consent to abortion. They are purported to protect health by regulating the practice of medicine. But their worst features are detrimental both to the goals of the doctrine of informed consent and to women's health. I refer to these laws as "biased counseling laws" because they are not intended to ensure that patients give their informed consent to abortion, but rather are intended to make women less likely to terminate their pregnancy. I employ a broad definition of biased counseling laws; for my purposes, any law that is intended to discourage women from deciding to obtain abortions is a biased counseling law. However, not all abortion- specific consent laws are equally ethically problematic. Thus, my argument will focus on certain features of biased counseling laws. This Article contributes to the literature by examining in detail the most problematic features of biased counseling laws, collecting and explaining some of the most influential ethical accounts of informed consent, and demonstrating the deep ethical problems with biased counseling laws. Legal scholars have previously argued that biased counseling laws are unconstitutional because they impose an undue burden on the right to terminate a pregnancy, they violate the First Amendment, and they constitute sex discrimination. This Article shows that, in addition to their shortcomings when judged by the standards of the Constitution, biased counseling laws have serious problems when judged by the standards of medical ethics. The Article provides an innovative, interdisciplinary analysis of statutory provisions in an area in which legislatures have been highly active in recent years and will likely continue to be.

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