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A New Approach to Abortion Informed Consent Laws: How An Evidence Law Framework Can Clarify Casey’s Truthful, Non-Misleading Standard

University of San Diego School of Law, 5998 Alcala Park, San Diego, CA 92110-2492, USA
Academic Editor: Rhonda Powell
Received: 22 October 2016 / Revised: 28 February 2017 / Accepted: 20 March 2017 / Published: 1 April 2017
(This article belongs to the Special Issue The Intersection of Human Rights Law and Health Law)
View Full-Text   |   Download PDF [203 KB, uploaded 1 April 2017]


United States Supreme Court doctrine has, for a quarter century, permitted regulations designed—through facts or nudges, but not force—to persuade pregnant women to choose childbirth over abortion. States have increasingly exceeded the bounds of this persuasive power by subjecting women to emotive and potentially distressing ‘information’ like real-time fetal images, heart beat recordings, or state-mandated directives by their doctors that abortion would “terminate the life of a whole, separate, unique, living human being.” This article advances a novel approach to informed consent in abortion that draws on established principles in the U.S. Federal Rules of Evidence (FRE). Evidentiary rules requiring “completeness”, exempting “common knowledge”, and prohibiting evidence that is “more prejudicial than probative” provide a sounder way for courts to determine which informed consent regulations on abortion mislead and demean a woman in ways that violate her constitutional right to make the ultimate decision about whether to continue a pregnancy. This evidence law framework would resolve conflicts between a woman’s right and the state’s interest by forbidding mandatory disclosures of incomplete, unnecessary, and emotionally charged information designed to promote childbirth over abortion. View Full-Text
Keywords: abortion; informed consent; reproductive rights; constitutional law abortion; informed consent; reproductive rights; constitutional law
This is an open access article distributed under the Creative Commons Attribution License which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. (CC BY 4.0).

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Jaswal, V. A New Approach to Abortion Informed Consent Laws: How An Evidence Law Framework Can Clarify Casey’s Truthful, Non-Misleading Standard. Laws 2017, 6, 6.

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