Disclosure Two Ways

See, e.g., Siegel R. B. , “Dignity and the Politics of Protection: Abortion Restrictions under Casey/Carhart,” Yale Law Journal 117, no. 8 (2008): 1694–1800; Bernstein E. , “The Upside of Abortion Disclosure Laws,” Stanford Law and Policy Review 24 (2013): 171–214, at 214; Keighley J. M. , “Physician Speech and Mandatory Ultrasound Laws: The First Amendment's Limit on Compelled Ideological Speech,” Cardozo Law Review 34, no. 6 (2013): 2347–2405, at 2348; Manian M. , “The Irrational Woman: Informed Consent and Abortion Decision-Making,” Duke Journal of Gender Law & Policy 16, no. 2 (2009): 223–292, at 251; Goldstein R. D. , “Reading Casey: Structuring the Woman's Decisionmaking Process,” William & Mary Bill of Rights Journal 4, no. 3 (1996): 787–880, at 816.

Id. (Bernstein), at 174, n. 19; see also Dresser R. , “From Double Standard to Double Bind: Informed Choice in Abortion Law,” George Washington Law Review 76, no. 6 (2008): 1599–1622; Post R. , “Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech,” University of Illinois Law Review 2007, no. 3 (2007): 939–990; Tobin H. J. , “Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws,” Columbia Journal of Gender & Law 17, no. 1 (2008): 111–151, at 148.

See infra section II.

This article takes a broad view of “assisted reproduction” related disclosure laws rather than narrowly focusing on laws related to oocyte or sperm donation.

See Baum K. , “Golden Eggs: Towards the Rational Regulation of Oocyte Donation,” Brigham Young Law Review 2001, no. 1 (2001): 107–166, at 163; see also Assembly Committee on Health, AB 1317 (Block) April 21, 2009 (explaining oocyte donation disclosure law as a consumer protection law).

See, e.g., Jessie Hill B. , “Reproductive Rights as Health Care Rights,” Columbia Journal of Gender & Law 18, no. 2 (2009): 501–549, at 515; Vandewalker I. , “Abortion and Informed Consent: How Biased Counseling Laws Mandate Violations of Medical Ethics,” Michigan Journal of Gender & Law 19, no. 1 (2012): 1–70, at 66–67; see also Berg P. , “Toward a First Amendment Theory of Doctor-Patient Discourse and the Right to Receive Unbiased Medical Advice,” Boston University Law Review 74, no. 2 (1994): 201–266, at 241; see Keighley , supra note 1, at 2405.

See Keighley , supra note 1; see also Post , supra note 2.

See, e.g., Trahanas K. A. Comment , “How the Undue Burden Standard Is Eroding Informed Consent,” Seton Hall Circuit Review 10, no. 1 (2013): 231–269, at 261.

505 U.S. 833, 882 (1992).

See Bernstein , supra note 1 at 212.

Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 881, 112 S. Ct. 2791, 2822, 120 L. Ed. 2d 674 (1992).

See, e.g., Tex. Health & Safety Code § 171.012 (upheld in Texas Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 573 (5th Cir. 2012)); SDCL § 34–23A-10.1 (upheld by Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Rounds, 686 F.3d 889, 894 (8th Cir. 2012).)

See Casey , supra note 11, at 882–883; see also Rounds , 686 F.3d at 893; Lakey , 667 F.3d at 575.

See Rounds , 686 F.3d at 898–899.

Id., at 894; see also Tobin , supra note 2, at 151 (2008).

For a discussion of the fetal protective rationale in Casey and in the broader context, see generally, Forte D. F. , “Life, Heartbeat, Birth: A Medical Basis for Reform,” Ohio State Law Journal 74, no. 1 (2013): 121–148.

See Casey at 882.

See Siegel , supra note 1, at 1767 (2008).

See Rounds at 897–903.

See Vandewalker , supra note 6, at 7 (2012) (discussing abortion-specific consent laws as “abortion exceptionalism”); see also Manian , supra note 1, at 251 (“The Casey opinion assumed that women lacked the judgment to make “mature and informed” abortion decisions on their own, without pressure from the State, as other patients do with respect to other important medical decisions.”)

Planned Parenthood Minn. v. Rounds, 653 F.3d 662, 668 (8th Cir. 2011) opinion vacated in part on reh'g en banc sub nom. Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Rounds, 662 F.3d 1072 (8th Cir. 2011) and on reh'g en banc in part sub nom. Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Rounds, 686 F.3d 889 (8th Cir. 2012).

Cf. Vargo M. P. , “The Right to Informed Choice: A Defense of the Texas Sonogram Law,” Michigan State University Journal of Medicine & Law 16, no. 2 (2012): 457–501, at 485.

See, e.g., Ala. Code §26–23A-4(a) (2002) (requiring that physicians provide contact information for local crisis pregnancy center); H.J. 1217, 86th Leg. Sess. (S.D. 2011) (requiring that “prior to the day of any scheduled abortion the pregnant mother must have a consultation at a pregnancy help center at which the pregnancy help center shall inform her about what education, counseling, and other assistance is available to help the pregnant mother keep and care for her child, and have a private interview to discuss her circumstances that may subject her decision to coercion,” and that the woman's physician must obtain written confirmation of the woman's consultation prior to signing the consent for the abortion); see also Sawicki N. N. , “The Abortion Informed Consent Debate: More Light, Less Heat,” Cornell Journal of Law & Public Policy 21, no. 1 (2011): 1–38, at 38.

Noah L. , “Ambivalent Commitments to Federalism in Controlling the Practice of Medicine,” University of Kansas Law Review 53, no. 1 (2004): 149–193.

Id., at 164.

Id., at 185.

See Keighley , supra note 1, at 2361.

See Casey at 884–85.

See Noah , supra note 26, at 159, n.44.

See supra note 7.

See supra note 6.

See supra note 5.

See Casey at 884–885.

See Sawicki , supra note 25, at 13 (2011).

Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014).

Id., at 1228, citing Casey (“within the confines of a professional relationship, First Amendment protection of a professional's speech is somewhat diminished”).

See Sawicki , supra note 25, at 11.

Lakey , 667 F.3d 570, 579 (5th Cir. 2012).

See Vandewalker , supra note 6, at 7.

TRAP (Targeted Regulation of Abortion Providers) laws “single out the medical practices of doctors who provide abortions (see <http://www.reproductiverights.org/our-issues/abortion> last visited March 27, 2015), and impose on them requirements that are different and more burdensome than those imposed on other medical practices. For example, such regulations may require that abortions be performed in far more sophisticated and expensive facilities than are necessary to ensure the provision of safe procedures. Compliance with these physical plant requirements may require extensive renovations or be physically impossible in existing facilities.” See Center for Reproductive Rights, “Targeted Regulation of Abortion Providers (TRAP),” March 5, 2009, available at <http://reproductiverights.org/en/project/targeted-regulation-of-abortion-providers-trap> (last visited March 27, 2015).

The Women's Health Protection Act, S. 1691 (2013), recently introduced in the Senate, aims to put an end to state regulations targeting abortion providers by requiring states to regulate abortion providers in exactly the same way they do other clinics and doctors who provide comparable services. See Marcotte A. , “The Democrats' Brilliant Idea for How to Stop Unnecessary Abortion Clinic Regulations,” Slate , July 15, 2014, available at <http://www.slate.com/blogs/xx_factor/2014/07/15/women_s_health_protection_act_a_brilliant_bill_to_protect_women_s_abortion.html> (last visited March 27, 2015).

410 U.S. 113 (1973).

See infra Section II.

See, e.g., Ekholm E. , “Access to Abortion Falling as States Pass Restrictions,” New York Times , January 3, 2014, available at <http://www.nytimes.com/2014/01/04/us/women-losing-access-to-abortion-as-opponents-gain-ground-in-state-legisla-tures.html?_r=0> (last visited March 27, 2015).

Although Courts have, in the First Amendment context, rejected inquiries into legislators' expressed intent, United States v. O'Brien, 391 U.S. at 383 (“O'Brien”); see also Menotti v. City of Seattle, 409 F.3d 1113, 1130 fn. 29 (9th Cir. 2005); Black, 201 F.3d at 1123; Philip Morris USA v. City & Cnty. of San Francisco, C 08–04482 CW, 2008 WL 5130460 (N.D. Cal. Dec. 5, 2008); Planned Parenthood of Kansas & Mid-Missouri v. Moser, 12–3178, 2014 WL 1201488 (10th Cir. Mar. 25, 2014) (upholding law that legislators stated was designed to defund Planned Parenthood), it is important to note incongruities between a justification of medical regulation and an articulated rationale of making abortion access more difficult.

See Bernstein , supra note 1, at 195.

See Cal. Health & Safety Code §125325 (West 2012) (requiring advertisements for oocyte donation include the following language: “Egg donation involves a screening process. Not all potential egg donors are selected. Not all selected egg donors receive the monetary amounts or compensation advertised. As with any medical procedure, there may be risks associated with human egg donation. Before an egg donor agrees to begin the egg donation process, and signs a legally binding contract, she is required to receive specific information on the known risks of egg donation. Consultation with your doctor prior to entering into a donor contract is advised.”); see also Cal. Health & Safety Code § 125335 (West 2012) (requiring doctors to provide “a standardized medically accurate written summary of health and consumer issues” associated with egg donation prior to obtaining informed consent); Ariz. Rev. Stat. Ann. § 36–1702 (West 2012) (requiring specific items be included in informed consent for egg donation, and that informed consent be in writing).

See, e.g., Cal. Health & Safety Code §109275(b)-(c)(1) (West 2012) (failure to inform patients in writing of alternative treatments for breast cancer is unprofessional conduct; state officials must develop standard disclosure form); Cal. Health & Safety Code § 109280 (West 2012) (requiring state officials to develop written disclosure form for alternative treatments for prostate cancer and urging physicians to disclose that information to patients); Fla. Stat. Ann. § 458.324 (West 2012); La. Rev. Stat. Ann. § 40:1300.154 (West 2011) (requiring discussion of alternative methods of treating breast cancer); Me. Rev. Stat. tit. 24, § 2905-A (2011) (requiring information be provided orally and in writing, about alternative efficacious methods of treatment of breast cancer); Mich. Comp. Laws Ann. § 333.17513 (West 2012) (requiring doctor to inform breast cancer patients, orally and in writing, about alternative methods of treatment of the cancer); see also Krause J. H. , “Reconceptualizing Informed Consent in an Era of Health Care Cost Containment,” Iowa Law Review 85, no. 261 (1999): 261–386, at 379–381.

The California hysterectomy-related disclosure requires a statement that “the individual is free to withhold or withdraw consent to the procedure at any time before the hysterectomy without affecting the right to future care or treatment and without loss or withdrawal of any state or federally funded program benefits to which the individual might be otherwise entitled,” a “description of the discomforts and risks that may accompany or follow the performing of the procedure, including an explanation of the type and possible effects of any anesthetic to be used,” and approximate cost, time of hospital stay, and recovery period. Cal. Health & Safety Code §§ 1690, 1691 (West 2012).

N.Y. Comp. Codes R. & Regs. tit. 10, § 52–9.5 (2000).

Cal. Health & Safety Code § 123620 (West 2012) (requiring that “[a] person or facility that offers fetal ultrasound, or a similar procedure, for keepsake or entertainment purposes, shall disclose to a client prior to performing the procedure, in writing, the following statement: ‘The federal Food and Drug Administration has determined that the use of medical ultrasound equipment for other than medical purposes, or without a physician's prescription, is an unapproved use.”’).

See Uhles J. M. , “Unsound Ultrasounds? An Examination of State Legislation Regulating Non-Medical Ultrasound Use and Private Ownership,” Journal of Legal Medicine 28, no. 2 (2007): 263–282, at 267–271.

Cal. Health & Safety Code § 123222.3.

In addition to California, the states of Connecticut, Illinois, New York, Texas, Utah, and Virginia require specific notice be given post-mammogram regarding breast density; each state specifies in a script the particular language to be given. See State Legislative Mandates: Mammography & Breast Density (2012), available at <http://www.leg.state.nv.us/Session/77th2013/Exhibits/Senate/HHS/SHHS1054W.pdf> (last visited March 27, 2015) (detailing state legislative efforts to require disclosure to women with dense breast tissue).

See, e.g., Neal M. E. , “Protecting Women: Preserving Autonomy in the Commodification of Motherhood,” William & Mary Journal of Women and the Law 17, no. 3 (2011) 611–637, 616–619; Karsjens K. L. , “Boutique Egg Donations: A New Form of Racism and Patriarchy,” DePaul Journal of Health Care Law 5, no. 1 (2002): 57–89, 60.

Id., at 73–74.

See Cal. Health & Safety Code § 109250 (West).

See, e.g., Scaldo Stacy A. , “Deadly Dicta: Roe 's ‘Unwanted Motherhood,’ Carhart II's ‘Women's Regret,’ and the Shifting Narrative of Abortion Jurisprudence,” Drexel Law Review 6, no. 1 (2013): 87–131, at 89, citing Gonzales v. Carhart, 550 U.S. 124, 168 (2007); see also Suk J. , “The Trajectory of Trauma: Bodies and Minds of Abortion Discourse,” Columbia Law Review 110, no. 5 (2010): 1193–1252, at 1233–1234.

Matter of Baby M, 109 N.J. 396, 537 A.2d 1227 (1988).

See Appleton S. F. , “Reproduction and Regret,” Yale Journal of Law & Feminism 23, no. 2 (2011): 255–333, at 286.

See, e.g., Appleton , supra note 47, at 307–308. It is important to note, however, that “a number of follow-up studies on those who have donated eggs for reproductive use in the United States fail to find significant incidences of ex post regret by egg donors.” Cohen I. G. , “The Right Not to Be a Genetic Parent?” Southern California Law Review 81, no. 6 (2008): 1115–1196, at 1177. Of course, even if gamete donors do not actually experience strong feelings of regret after donation, this does not remove the regret narrative from statutory enactments. In this way, too, disclosure laws in the assisted reproduction context are more similar to the abortion context than has been previously recognized by commentators.

It is perhaps because the procedure carries little impact on perceived fertility that the “regret” narrative comes up less in the discussion of selective reduction of multiple pregnancies, which are not themselves usually discussed in the abortion context. See Rao R. , “Is Selective Reduction Really Different from Abortion?” Journal of Law, Medicine, & Ethics 43, no. 2 (2014): 196–205.

For example, see the California oocyte donation disclosure law, supra note 51, as well as regulation of disclosures related to mammography, supra note 57. Interestingly, the focus upon advertising disclosures appears to mirror California's requirement of advertising disclosures in the adoption context. Cal. Fam. Code § 8624.

See Cal. Health & Safety Code § 125325(c) (“Persons or entities that certify compliance with the American Society for Reproductive Medicine (ASRM) guidelines by registering with ASRM are exempt from the notice requirements set forth in subdivision (a). Use of the exemption when the guidelines are violated shall constitute false advertising”).

See, e.g., Evergreen Ass'n, Inc. v. City of New York , 740 F.3d 233 (2d Cir. 2014); Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184 (4th Cir. en banc 2013); Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 721 F.3d 264 (4th Cir. en banc 2013).

While a full explication of the crisis pregnancy center disclosure laws is not within the scope of this Article, it is important to note that while the Casey court permitted a State to convey its position on abortion in communications incidental to the disclosure requirement, courts have expressed some discomfort as to whether a disclosure mandate may convey the State's interest in expedient and professional conveyance of abortion care.

Guttmacher Institute, State Policies in Brief , May 1, 2014, available at <http://www.guttmacher.org/statecenter/spibs/spib_MWPA.pdf> (last visited March 27, 2015) (noting that over 30 states have enacted some form of pre-abortion disclosure or counseling requirement).

See Rounds , 530 F.3d at 743 (Murphy, J., dissenting).

In several recent cases, states with disclosure laws have enacted restrictive requirements for doctors performing abortions, resulting in the potential or actual closure of many abortion clinics. Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 13–51008, 2014 WL 1257965 (5th Cir. Mar. 27, 2014); see also Fernandez M. , “Abortion Law Pushes Texas Clinics to Close Doors,” New York Times , March 6, 2014.

See Relf v. Weinberger, 372 F. Supp. 1196, 1201 (D.D.C. 1974) vacated, 565 F.2d 722 (D.C. Cir. 1977); see also Kubasek N. K. , “Legislative Approaches to Reducing the Hegemony of the Priestly Model of Medicine,” Michigan Journal of Gender & Law 4 (1997): 375–423, at 384–399.

Pérez M. Z. , “Past and Present Collide as the Black Anti-Abortion Movement Grows,” Colorlines, March 3, 2011, available at <http://colorlines.com/archives/2011/03/past_and_present_collide_as_the_black_anti-abortion_movement_grows.html> (last visited March 27, 2015).

See Bernstein , supra note 1.

Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014).

Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012) (enjoining Florida's Firearm Owners' Privacy Act).

See, generally, Juth N. , “The Right Not to Know and the Duty to Tell: The Case of Relatives,” Journal of Law, Medicine & Ethics 42, no. 1 (2014): 38–52, at 44 (discussing ethical questions related to genetic counseling and the potential right not to know one's genetic information).