In the 20 U.S. states where "mandatory delay and biased counseling laws" are enforced, women are required to delay obtaining an abortion in order to receive biased, anti-abortion information mandated by state legislatures. Because most clinics schedule abortion procedures for only one or two days each week, these laws can force some women to wait as long as two weeks for an abortion. While abortion is one of the safest surgical procedures performed today, the risk of complications increases as a pregnancy progresses.
"Women seeking abortions should not have to face the burdensome requirements of mandatory delay and biased information laws," said Priscilla Smith, director of the Center’s Domestic Legal Program. "Bottom line, these laws endanger women’s lives rather than protect them."
With misleading titles such as the "Women’s Right to Know Act" or "informed consent" provisions, these laws are enacted under the ruse that they are needed to guarantee that women receive the information they need before having an abortion. However, existing state and medical standards already ensure that women receive accurate, unbiased information about their health-care options and give their informed consent for any procedure. The state-mandated information required under these laws is often irrelevant, unnecessary, misleading or medically inappropriate. For example, some states require that even an incest survivor be informed that her abusive father can be sued for child support if she continues her pregnancy
For rural, low-income women who live far from abortion clinics, these laws pose particularly burdensome requirements. Since only 14% of all U.S. counties have an abortion provider, many women already travel long distances to a clinic—in fact, according to the Alan Guttmacher Institute (AGI), one in four women who have had abortions traveled 50 miles or more for the procedure. States that require that women receive the information in person, rather than by telephone, may force women to take additional time off from work, arrange for childcare, or even remain away from home overnight, thereby increasing the cost of abortion and making it more difficult for women to keep their decision to have an abortion confidential.
In 2003 alone, more than 70 new mandatory delay and biased information bills were introduced throughout the country. So far, Texas, Minnesota and West Virginia have enacted these laws.
ATTEMPTING TO PASS OFF THE COSTS OF BIASED INFORMATION
In some states, supporters of this legislation have made it even more onerous by requiring abortion providers and their patients to pay for the biased and unnecessary information required by the laws. For example, the State of Alabama enacted a law that would have passed the costs of producing and distributing biased information materials to abortion providers who are required to provide the materials to women 24 hours prior to the procedure. The state would have charged providers $4 per booklet and $50 per videotape.
In July, in a case brought by the Center for Reproductive Rights, a federal judge struck down that provision of the law, a move that will save abortion providers at least $50,000 per year and will keep the costs of safe abortions down throughout the state.
This victory—which ensures that the state cannot force individuals to pay for materials it requires them to distribute—is an important affirmation of First Amendment rights. In addition, it may help prevent attempts in other states to pass the costs of biased information laws on abortion providers and their patients.
PUSHING THE MYTH OF AN ABORTION-BREAST CANCER LINK
Another provision that is seeing a greater push is intended to intimidate women seeking abortions. "We’re seeing a rise in mandatory delay bills that require doctors to counsel their patients on a link between abortion and breast cancer," said Erica Smock, the Center’s state legislative counsel. "The medical community has refuted this link but that has yet to deter anti-choice zealots bent on scaring women out of their right to choose."
Although both the National Cancer Institute and the American Cancer Society have concluded that there is no established link between abortion and breast cancer, approximately 30 bills introduced in 13 states require doctors to inform their patients of such a link. In Texas and Minnesota, where such bills were successfully enacted, doctors are required to discuss the abortion-breast cancer issue with their patients only when it is "medically accurate," which is never the case.
Some of the mandatory delay and biased information bills currently pending also require doctors to inform abortion patients about fetal pain during the procedure and whether anesthesia would eliminate or alleviate that pain. However, the very concept of fetal pain is not supported by medical evidence, representing yet another bullying tactic by anti-choice officials bent on curtailing women’s reproductive rights.
BATTLES IN THE COURTS
This onslaught of mandatory delay and biased information laws gained momentum following the Supreme Court’s 1992 decision allowing a Pennsylvania waiting period law to stand.
The ruling in Planned Parenthood v. Casey allows states to regulate abortion prior to fetal viability based on the state’s interest in protecting potential life and maternal health, so long as those regulations did not impose an "undue burden." The Court ruled that states are barred from imposing 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."
Despite this setback, the Center has continued to challenge mandatory delay and biased information laws under both the federal and state constitutions.
In September 2002, the Center convinced a Florida judge to issue a permanent injunction against that state’s biased information law. The Florida law, like many others, did not allow doctors to tailor the state-mandated information to protect their patients’ best interests. Physicians in these states are sometimes required to relay information that may unreasonably raise a woman’s expectation of benefits.
We also continue to fight an Indiana mandatory delay law in state court after a seven-year battle in the federal courts.
