Laws mandating disclosure of particular information are known as informed consent laws. They exist primarily in the area of reproductive health and most often apply to women seeking abortion. This article discusses the legal and ethical issues that arise when lawmakers decide what patients must be told before they can access certain medical procedures. Part II examines some of the ethical implications of informed consent laws. Physicians have a duty to obtain a patient's informed consent before acting. Part III discusses legal concerns raised by informed consent laws. These include the First Amendment free speech rights of physicians and patients' right to obtain their physicians' advice and counsel without government interference. This article examines two United States Supreme Court cases that addressed these aspects of informed consent and the implications of the Court's holdings for fetal pain informed consent legislation. Part IV reviews two recent pieces of federal legislation with the potential to significantly affect abortion practice and the lives of women who seek abortion services. The Partial-Birth Abortion Ban Act and the Unborn Child Pain Awareness Act. Part V briefly reviews the cases that identified and defined the constitutional right to an abortion. It then discusses cases where courts considered the constitutionality of informed consent laws and compares the reasoning of those courts to the arguments likely to be raised in any challenge to the federal Unborn Child Pain Awareness Act of 2005. Part VI summarizes the findings of a team of physicians at the University of California at San Francisco, concluding that fetal perception of pain is unlikely prior to twenty-nine weeks gestation.
Linda P. McKenzie, Federally Mandated Informed Consent: Has Government Gone Too Far, 20 J.L. & Health 267 (2006-2007)