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Informed consent law for abortions upheld by court

Both sides claim victory in the Florida Supreme Court decision, but enforcement still is under debate.

By JENNIFER LIBERTO
Published April 7, 2006

TALLAHASSEE - The Florida Supreme Court unanimously upheld part of a 1997 law that requires doctors to explain the medical risks of abortion and get a signed consent form from women seeking the procedure, reversing lower courts' rulings.

A West Palm Beach clinic had originally challenged the entire "Women's Right to Know Act," saying it violated the Florida and U.S. constitutions. The informed consent law has never been enforced because of the lawsuit. Enforcement is still under debate.

Justices wrote that government can require the doctor who performs the abortion to talk with patients about the "nature and risks" of the procedure, the "probable gestational age of the fetus" and the medical risks of carrying the pregnancy to term.

While the 16-page opinion had both sides claiming victory, Chief Justice Barbara Pariente made it clear, in a concurring opinion, that the decision is narrow and leaves room for the clinic, the Presidential Women's Center, to challenge other parts of the act.

Basically, the opinion says that requiring doctors to give information and get consent from women seeking abortions is no different from what generally is required of doctors performing surgeries.

"Whether you are prochoice or prolife, abortion is a medical procedure, and as construed by state law now, it requires a standard informed consenter provision," said Mike Allen, an associate professor at Stetson University College of Law in Gulfport.

Part of the reason the Supreme Court so strongly agreed to uphold informed consent for abortions is that government attorneys changed their strategy when they got before the court, Pariente noted. The state had made concessions, including saying the law requires doctors to discuss only medical risks, not other risks.

And the justices gave doctors the authority to use their judgment to decide how much information a woman needs to be informed about abortion risks.

"We are gratified that abortion providers should not be denied of their medical judgment," said Bebe Anderson, a New York attorney for the Center for Reproductive Rights who worked on the case.

Conservative groups and Gov. Jeb Bush called the decision a win for the state and the antiabortion movement. "If it's to uphold the law that says that there needs to be informed consent, I think that's a good thing," Bush said.

Erik Stanley, an attorney with the conservative law firm Liberty Counsel of Orlando, which wrote a friend-of-the-court brief on the issue, said the opinion means the state will be able to start enforcing the 9-year-old law for the first time.

However, Anderson, the clinic's attorney, said the injunction that kept the law from going into effect may have depended on other issues the justices did not address, meaning enforcement could be a few court hearings away.

The rest of the law still in dispute would require doctors to distribute pamphlets printed by the Health Department that detail a description of the fetus, alternatives to abortion and information on prenatal care and childbirth.

In addition, it would force doctors who don't get consent in cases where the woman's health was deemed to be at risk to prove there was an emergency.

[Last modified April 7, 2006, 01:31:16]