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Document Type

Article

Publication Date

12-15-2016

Publication Citation

92 Indiana Law Journal 1 (2016)

Abstract

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understand-ing, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.

This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possi-bility that such standards might cross state lines. Planned Parenthood v. Casey and other decisions that have approved abortion-specific informed-consent requirements have failed to account for this interstate dynamic.

In recent years, fourteen states, led by South Dakota, have enacted statutes that direct doctors to warn patients, as part of an informed-consent dialogue, that abor-tion might cause depression and even suicide ideation and actual suicide. Although there is broad medical consensus that such warnings are unnecessary, courts have nonetheless concluded that the Supreme Court’s Casey decision shields them from constitutional challenge. This may have implications not just in the states that man-date such warnings, but nationwide. Because doctors’ informed-consent obligations incorporate medical information and practices from other jurisdictions, a doctor’s failure to warn a patient about postabortion depression may expose her to liability for medical malpractice—even where her own state does not mandate such a warn-ing statutorily. Eliminating this risk by warning a patient that abortion might lead to depression costs the doctor much less than the penalties she might incur for with-holding that information.

This dynamic—which we term the “South Dakota effect”—threatens to transform informed-consent practices across the country, with profound consequences for women’s willingness to elect abortion and for the experiences of women who choose to go forward with abortion procedures. More broadly, it highlights the need to re-think the abortion-federalism nexus.