The Profound Complexities of Informed Consent to Abortion
After her own abortion researcher digs deeper.
Anna (not her real name) came to see me to discuss the research she was doing on abortion. We talked about the articles she’d read, when I asked her, “How did you become interested in this topic?” She hesitated, then said, “I just had an abortion, and I’m terribly upset and I’d like to tell you about it.” Her story is tragic.
Anna explained, “Everyone in Quebec thinks that abortion is normal; nothing to fuss or be upset about; the obvious and easy solution to an unplanned pregnancy.” But, when she unexpectedly found herself pregnant, she didn’t feel that way and sought support to continue the pregnancy. Everyone told her, however, to “get on with it” --have an abortion.
“Everyone in Quebec thinks that abortion is normal; nothing to fuss or be upset about...”
Anna, first, asked her mother whether she would help her, if she had the baby. Her mother flatly refused, saying, “I do not want to waste my life babysitting.” Her male partner said “he wasn’t interested in a kid” and their relationship has since broken up. She tried to get an appointment with her gynecologist to discuss her options, but the first available one was two months away. She then contacted an abortion clinic, which gave her an appointment in two weeks, at which time Anna was nine weeks pregnant. She said, “I went to them to get information on abortion, to know more about my options, the consequences of an abortion. I was open to getting an abortion, because that was what everyone around me recommended I do. I saw abortion as an option, but was really not sure. I was hoping for some answers.”
Anna met, first, with a nurse for a “consent interview.” She said, “The nurse told me that at this stage of the pregnancy the fetus is just a bunch cells. I also asked her if the abortion would have any impact on my health, my future pregnancies, and so on. She said abortions had no impact at all, no consequences at all, that all that I had read (to the contrary) were myths. The nurse said, “In two weeks, it will be as if all this never happened”
Anna changed into a hospital gown and was taken into an examination room where a technician proceeded to do an ultrasound. Anna asked what the fetus looked like and could she see the ultrasound. She said, “The technician told me she was not allowed to show me the images and I was unable to see the screen,” which showed the fetus. At nine weeks gestation, it would have had a beating heart. The technician then picked up the printout of the ultrasound, but dropped it on the floor. She scrambled to gather it up quickly, saying, “You don’t want to see this.” But that’s exactly what Anna did want.
Anna says she was left “waiting alone in a little room in the blue gown,” before a nurse took her to the operating room, “where they gave me the sedative injection. At that point I was just crying, I was just thinking of all the reasons people told me I had to get the abortion, and that I did not have any help anyways, so I was crying. The doctor asked me if I was here on my own will and I said, ‘Yes’, while crying. So they gave me a double dose of sedative to calm me down. At that point, I felt it was pointless to protest further and that I couldn’t back out at that stage and would just have to go ahead. So, she closed her eyes and let the abortion proceed.
Anna said that “the attitude in Quebec, that ‘of course you should have an abortion, it is of no consequence’, is not true.” She explained, “I feel terrible. I can’t go to work. I’;ve started seeing a psychologist. I feel guilty.” She mused, “I wonder why Quebec is like this.”
So, what ethical and legal issues does this case raise?
First, whether we are pro-choice or pro-life, we should all agree that women do not have a free choice, unless there are easily accessible, adequate support systems for continuing a pregnancy...
First, whether we are pro-choice or pro-life, we should all agree that women do not have a free choice, unless there are easily accessible, adequate support systems for continuing a pregnancy, as Anna says she wanted to do. She explained that she’s 32 years old and believes having a child is a fundamental life experience for a woman and, now, she may not have that experience.
We discussed how she felt her choice was between the baby losing its life or her “losing her life,” because no one would give her any support that would enable her to complete her studies and start a professional career, and she “just couldn’t do everything that would be necessary alone.” She queried why, each year, we spend so much taxpayers’ money on bringing 50,000 immigrants to Quebec, but not supporting the pregnant women among the 30,000 who have an abortion, who, with support, would choose to have their babies.
It’s a serious fault on our part, as a society, not to provide such support, which should include easy access to free counselling independent of abortion facilities, as is being proposed in Britain. Keep in mind that abortion clinics are a for-profit undertaking selling a “service.”
The second issue is whether Anna gave her free and informed consent to an abortion. Ethically and legally, as the Supreme Court of Canada has ruled, informed consent requires that a person be given “all the information that would be material to a reasonable person in the same circumstances” in making a decision whether to undergo any given medical procedure. This requires that the harms, risks and benefits of the procedure, and its alternatives, including doing nothing, are disclosed.
The law in some American states requires that women contemplating an abortion must be shown or, at the least, be offered the opportunity to see an ultrasound image of their fetus, as part of the information necessary to obtain their informed consent. We can contrast this requirement with a recent Canadian proposal to prohibit disclosing the sex of a fetus, which showing them an image of it would likely do, until after 30 weeks gestation to try to avoid sex-selection abortions.
Informed consent is not present if the information is inadequate – that’s medical negligence (malpractice). And even non-material information must be disclosed if it is raised by a person’s questions, which must be answered honestly and fully. Anna’s request to see the ultrasound image is relevant in this latter respect. Consent is never present where intentionally false information is given, especially when it involves consequences and risks – indeed, this can give rise to the legal wrongs of battery and assault. Anna believes, as I do, that her experience at the abortion clinic raises issues with respect to all of these requirements.
Informed consent also requires that the consent be voluntary, that is, not affected by coercion, duress or undue influence. To help ensure the consent is “free”, some American states legally require a “cooling off” period between deciding to have an abortion and its being carried out. Even assuming Anna’s consent was present initially, because consent is an ongoing process, not a one-time event, the voluntariness of her continuing consent is questionable in the circumstances existing at the point at which she was given sedation. Consider, as an analogy, if Anna had consented to sexual intercourse in similar circumstances, would her consent have been sufficient to avoid a charge of sexual assault (rape)?
And, one of the most pernicious myths propagated in relation to abortion – one that we can see in the nurse’s reassurance to Anna that in two weeks she will have forgotten about all of this – is that abortion will restore the woman to a situation as if the pregnancy never occurred. That is impossible, as many women like Anna come to realize too late.
Anna speaks about her consent in this way, “In that time of my pregnancy I had a lot of nausea and was on a real hormonal roller coaster! The difference between my decision process in my “normal” state and that ‘state’ are two worlds. I think that when a woman is pregnant, from my experience, she is much more vulnerable, and thus can be ‘pushed around’ more easily. This should be taken into account when a clinic is looking to have consent from a pregnant woman.”
I showed this article to Kathleen Gray from the Centre for Reproductive Loss in Montreal. She responded: “Anna’s story is so familiar, as we have heard many similar tragic stories over 20 years of counselling post-abortive women. These elements could apply to hundreds of women, especially the serious problems concerning the information they are both given and denied. Sadly, Anna’s story is not unique.”
As this case shows, abortion is not the simple quick-fix solution to an unplanned pregnancy that it’s often presented as being. It’s a life-affecting decision in more ways than one. Anna’s comment on reading this article, which I publish with her permission, was, “Thank you for this. I hope (the loss of) a life and my own suffering will help others.”
Margaret Somerville DCL, LL.D, is the founding director of the Centre for Medicine, Ethics and Law at McGill University.
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