July 2003, Item: F002

Adding to the difficulty of facing an unintended pregnancy, many states have enacted or are considering laws that create barriers to women's access to abortion. These restrictions on abortion bear benign-sounding names such as "informed consent" or "women's right to know." Under the guise of protecting women's health, these laws force a woman to delay the abortion procedure as long as 48 hours after receiving state-mandated information.¹ This information is often irrelevant, unnecessary, misleading or medically inappropriate.

Mandatory delay requirements serve no actual health purpose and are intended to discourage abortion as an option. These restrictions create many obstacles for women, including increased expenses, travel difficulties and medical risks.

Rural, Low-Income, Young Women Most Affected

These requirements become extremely burdensome for women living far from the nearest abortion provider. Women may have to take additional time off from work, arrange childcare, or even remain away from home overnight or pay for another round trip to the clinic. According to the Alan Guttmacher Institute, eighty-six percent of all counties in this country have no abortion provider. The shortage of physicians forces some women to travel long distances, and most clinics schedule abortion procedures only one or two days each week. Because a physician - not a trained counselor, nurse, or other health practitioner - is often required to provide the information to the woman, both of these visits must be squeezed in to this difficult schedule. As a result, mandatory delays of twenty-four hours may mean women have to wait as long as two weeks.

The resulting delays can be especially harsh for young women who may also have to navigate complicated court procedures to avoid parental involvement or for low-income women who have more difficulty raising the money to pay for both the procedure and travel. The repeat visit to the clinic also allows abortion anti-choice protesters a second chance to harass these women.

Women's Health at Risk

In August 1992, Mississippi became the first state to enforce a mandatory delay and biased information requirement that forces a woman to travel twice to a health care provider - once for the mandated information and a second time for the abortion. Data compiled by the Alan Guttmacher Institute reveals that that the law has forced some women to delay or even forego the abortion procedure. The number of Mississippi women obtaining abortions was thirteen percent lower than expected during the five months following implementation of the law. The mandatory delay also resulted in an eighteen percent increase in the proportion of abortions performed in the second trimester of pregnancy.

While abortion is one of the safest medical procedures performed today, risks of complications increase as the weeks progress. The Alan Guttmacher Institute has found that cost, location and availability of services are cited by nearly one-half of women having abortions beyond fifteen weeks gestation. Laws mandating delays can increase cost and force women to travel a great distance twice, while forcing physicians to provide the counseling in lieu of other health workers further strains the availability of services.

Physicians Required to Compromise Medical Ethics

Abortion providers are required to provide the state-approved information to every woman before her abortion procedure. Most laws dictate that the counseling include the "probable gestational age of the unborn child" and "the medical risks associated with carrying her child to term." Many of these laws also require physicians to offer government-produced pamphlets, with photos or detailed descriptions of the fetus, and lists of agencies that "can assist her in carrying her pregnancy to term." Women are often forced to listen to a lecture about the availability of medical assistance funds for prenatal care - but not abortion.

Although the state-mandated information often looks innocuous, threats of criminal penalties or license revocation can compel doctors to provide information to women that may be harmful or might force the doctor to violate professional ethics. For example, there is no health purpose in informing an incest survivor that she can sue her abusive father for child support, or raising an expectation for benefits that a woman may be unable to collect.

Anti-Choice Bias Slants Information Seeking to scare women who choose abortion, anti-choice activists are claiming the existence of a link between abortion and breast cancer. Many anti-choice legislators are zealously pushing for the inclusion of this "risk" in the informational materials - a claim widely refuted by leading cancer organizations. Despite the lack of scientific evidence to support this claim, two states have passed laws referring to breast cancer as a possible risk from induced abortion. For more information see our factsheet Yet Another Anti-Abortion Scare Tactic: False Claims of Breast Cancer Risk .

Do These Laws Create an "Undue Burden?"

Roe v. Wade, the 1973 Supreme Court case that legalized abortion, did not allow states to restrict access prior to the third trimester of pregnancy. In 1992 the Supreme Court upheld Pennsylvania's mandatory delay and biased information requirement in Planned Parenthood v. Casey, adopting a new "undue burden" standard for measuring the constitutionality of abortion laws. But the legal battle over the validity of such measures continues.

The Court made clear that states may not impose restrictions on the right to choose that have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion." In applying this undue burden standard, federal courts must look carefully at the impact of a law on women. Successful legal challenges to mandatory delays and biased information requirements can be brought before or after a law takes effect, if it can be proven that women will face or have faced "substantial obstacles" to obtaining abortions as a result.

Conclusion

Supporters of mandatory delay and biased counseling requirements argue that these laws will enable women to make informed choices about abortion. But evidence demonstrates that women already carefully consider their options. State laws, as well as established medical standards, ensure that women are provided with accurate and unbiased information about their health care options and give their informed consent for any procedure. Clinics routinely refer the small number of women who are ambivalent about their decision for additional counseling, or suggest voluntary delays to assure that the woman's decision is fully informed.

Mandatory delays and biased information requirements scold women, discourage them from obtaining abortions, and unnecessarily postpone the procedure or prevent it altogether even though a woman has made a deliberate, mature, and fully informed choice.

1 For a complete listing of states with mandatory delays and biased information laws, see our factsheet Mandatory Delays and Biased Information Requirements.