During oral argument in NIFLA v. Becerra last Tuesday, a majority of the Supreme Court seemed poised to rule that California overstepped by trying to force pro-life pregnancy centers to direct their clients to the state’s abortion programs. However, Justice Breyer, seeking to save the California law from First Amendment attack, equated informed consent for a surgical abortion to a volunteer offering assistance to a pregnant woman in difficult circumstances.
Justice Breyer’s courtroom commentary was as follows:
In law, as you well know, what is sauce for the goose is sauce for the gander. And so I think what’s bothering from these questions people, as it bothers me, we — there — there are pro-choice states and there are pro-life states. All right? So, if a pro-life state can tell a doctor you have to tell people about adoption, why can’t a pro-choice state tell a doctor, a facility, whatever it is, you have to tell people about abortion? See? That’s simple. The one we’ve said you can make a doctor who is very pro-life tell her about abortion, okay, I get it, and why don’t we have to say, to keep sauces the same.
This is a very misleading statement of the case. Women deserve more than the sauce Breyer is dishing up.
Despite the attempts of the abortion lobby to present abortion as the quick and easy walk-back from an unwanted pregnancy, the fact remains that abortion is an invasive surgical procedure that causes immediate medical complications about 10 percent of the time. These include hemorrhage, infection, injury to the cervix, shock, renal failure and cardiac arrest. About 20 percent of these complications are life-threatening. Long term adverse effects include increased risk of miscarriage, subsequent preterm birth, placenta previa and mental health problems.
These complications are of real concern, not just to women considering the surgery, but to the wider society. Taking a deeper look at one long-term potential adverse outcome–preterm birth–will explain why. Over 130 peer-reviewed studies have shown a link between abortion and the mother giving birth prematurely to subsequent children, with a recent study finding that over 31 percent of preterm births are likely related to prior abortion (likely due to trauma to the cervix and endometrium). The leading cause of death for American infants is prematurity, and for babies who survive, but are born with very low birth weight, potential developmental problems include cerebral palsy, cognitive impairment and other chronic health issues.
Acknowledging the medical risks of abortion (as well as its finality), some states (not including California) have responded with laws requiring abortionists to fully inform a woman not just of the potential health risks associated with abortion but also of the supports and resources available to help her avoid it and carry her pregnancy safely to term. This includes the option of adoption. In Planned Parenthood v. Casey, the Supreme Court upheld Pennsylvania’s informed consent law, specifically noting that it did not unconstitutionally infringe on the First Amendment rights of abortionists.
The requirement that doctors fully inform patients prior to their undergoing elective surgical procedures is standard in the medical profession. It is particularly compelling when abortion is involved, as there is rarely medical necessity for abortion, and the alternative (childbirth) is safer for both mother and child. These laws also acknowledge the reality of what makes abortion ethically unlike any other medical procedure: the mother is consenting to the termination of a second patient. This is an irrevocable act with no medical parallel except perhaps involuntary euthanasia.
This is why Justice Breyer is wildly off-base to treat as equal informed consent for abortion with California’s law requiring pregnancy centers to promote abortion before even offering their assistance. The law’s disclosure notice is not meant to inform women about the adverse side-effects of ultrasounds or pregnancy tests (there aren’t any). Rather, the law forces centers to promote what has been established as the State of California’s preferred solution for unexpected pregnancies: abortion.
The two types of disclosure requirements are not even remotely the same “sauce.” Justice Breyer understands this. Perhaps he was just using his question time to play the devil’s advocate. But if not, he is offering a false analogy in order to find some grounds to uphold an unconstitutional law that clearly doesn’t have the support of most of his colleagues.
Andrea Picciotti-Bayer is an attorney and legal advisor for The Catholic Association Foundation and Dr. Grazie Pozo Christie, M.D. is a policy advisor for The Catholic Association.
