03-Is WRTK constitutional

The bill entitled “An Act Relative to a Woman’s Right to Know”[1] requires abortion providers in non-emergency situations to offer women certain information before an abortion.

First, all women must be informed of the availability of state-produced materials providing general explanations about such things as abortion methods, fetal development, alternatives to abortion, pregnancy support services, and patients rights. These materials must “be objective, nonjudgmental and designed to convey only accurate scientific information when discussing fetal development and medical risks”. Access to the materials must be offered at least 24 hours before an abortion is performed. The woman may refuse the materials and offering them will not delay the abortion.

Second, all women must meet with a physician (either the one referring for or the one performing the abortion) sometime before giving written consent. The physician must share with the woman any information about the method of abortion to be performed “that a reasonable patient in the woman’s position would consider material to the decision of whether to undergo the abortion”. Additionally, the physician must give the woman medical information about the gestational age and physical characteristics of her unborn child.

The U.S. Supreme Court has upheld informed consent and reflection period requirements because they “reduce the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”[2]

The Massachusetts courts have subjected state laws concerning “the decision whether or not to beget or bear a child”[3] to independent scrutiny under the state constitution.[4] When “enter[ing] the constitutionally protected area of choice”, the state must abide by a “genuine indifference” that “may not weigh the options open to the pregnant woman”.[5]

Some argue that “right to know” legislation fails this neutrality test by requiring only information tending to discourage abortion and encourage childbirth. The bill sponsors disagree. Must the state remain indifferent to the failure of full disclosure? The woman’s right to know bill makes the decisionmaking process more, not less, neutral.

The bill takes into account two “practical realities”.[6] First, abortion providers are businesses. Thus, they have a vested interest in clients choosing their abortion services. They are motivated and prepared to offer information supporting their view as to why they believe abortion is a beneficial service. No state mandate is required to avail women of this information.

Second, even the abortion providers themselves admit that their facilities do not provide women with all the information that may be material to the woman’s abortion decision. Women are not given the physician’s name until just before the abortion.[7] Information about fetal development is not volunteered.[8] This information has proven to be significant and material to many women.[9]

The bill furthers two fundamental personal interests recognized by the Massachusetts courts: the “right to be free from nonconsensual invasion of . . . bodily integrity”[10] and “[t]he patient’s right to know . . . all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient to undergo a proposed procedure.”[11]

The bill does not burden women in any way other than to give them the opportunity to be fully informed when making their decision. Current practice is biased. The woman’s right to know bill eliminates the bias. Women deserve no less.

[1] H. 2466 & S. 1069 are identical.

[2] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 882 (1992).

[3] Moe v. Sec’y of Admin. & Fin., 382 Mass. 629, 649 (1981) (citation omitted).

[4] Id. at 651.

[5] Id. at 654.

[6] Id. at 653 (“We are not free to disregard the practical realities.”) (citation omitted).

[7] Per testimony of representatives of the Planned Parenthood League of Massachusetts in 1999 before the Judiciary Committee.

[8] The state-mandated consent forms define an abortion only as “the emptying of the contents of the uterus”. This is biased.

[9] When states adopt women’s right to know legislation, up to 13% of women seeking abortion as a result may choose instead to continue their pregnancies, based on the newly required information concerning fetal development.

[10] In re Spring, 380 Mass. 629, 634 (1980).

[11] Harnish v. Children’s Hosp. Med. Ctr., 387 Mass. 152, 155 (1982).