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Complete Home and Office Legal Guide (Chestnut) (1993).ISO
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In Akron I, 462 U. S. 416 (1983), we invalidated an ì
ordinance which required that a woman seeking an abortion be ì
provided by her physician with specific information designed to ì
influence the woman's informed choice between abortion or ì
childbirth. Id., at 444. As we later described the Akron I ì
holding in Thornburgh v. American College of Obstetricians and ì
Gynecologists, 476 U. S., at 762, there were two purported flaws ì
in the Akron ordinance: the information was designed to dissuade ì
the woman from having an abortion and the ordinance imposed a ì
rigid requirement that a specific body of information be givenin ì
all cases, irrespective of the particular needs of the ì
patient . . . . Ibid. To the extent Akron I and Thornburgh find ì
a constitutional violation when the government requires, as it ì
does here, the giving of truthful, nonmisleading information ì
about the nature of the procedure, the attendant health risks and ì
those of childbirth, and the probable gestational age of the ì
fetus, those cases go too far, are inconsistent with Roe's ì
acknowledgment of an important interest in potential life, and ì
are overruled. This is clear even on the very terms of Akron I ì
and Thornburgh. Those decisions, along with Danforth, recognize ì
a substantial government interest justifying a requirement that a ì
woman be apprised of the health risks of abortion and childbirth. ì
E.g., Danforth, supra, at 66-67. It cannot be questioned that ì
psychological well-being is a facet of health. Nor can it be ì
doubted that most women considering an abortion would deem the ì
impact on the fetus relevant, if not dispositive, to the ì
decision. In attempting to ensure that a woman apprehend the ì
full consequences of her decision, the State furthers the ì
legitimate purpose of reducing the risk that a woman may elect an ì
abortion, only to discover later, with devastating psychological ì
consequences, that her decision was not fully informed. If the ì
information the State requires to be made available to the woman ì
is truthful and not misleading, the requirement may be ì
permissible.
/* Ordinarily "the marketplace of ideas" would be allowed to ì
determine what is truth. Here the Court presumes that the state ì
will know to confine itself to the "truth" a reahter elusive ì
standard and one which invites litigation. */
We also see no reason why the State may not require ì
doctors to inform a woman seeking an abortion of the availability ì
of materials relating to the consequences to the fetus, even when ì
those consequences have no direct relation to
her health. An example illustrates the point. We would think it ì
constitutional for the State to require that in order for there ì
to be informed consent to a kidney transplant operation the ì
recipient must be supplied with information about risks to the ì
donor as well as risks to himself or herself. A requirement that ì
the physician make available information similar to that mandated ì
by the statute here was described in Thornburgh as an outright ì
attempt to wedge the Commonwealth's message discouraging abortion ì
into the privacy of the informed-consent dialogue between the ì
woman and her physician. 476 U. S., at 762. We conclude, ì
however, that informed choice need not be defined in such narrow ≡7É3 ìèterms that all considerations of the effect on the fetus are made ì
irrelevant. As we have made clear, we depart from the holdings ì
of Akron I and Thornburgh to the extent that we permit a State to ì
further its legitimate goal of protecting the life of the unborn ì
by enacting legislation aimed at ensuring a decision that is ì
mature and informed, even when in so doing the State expresses a ì
preference for childbirth over abortion. In short, requiring ì
that the woman be informed of the availability of information ì
relating to fetal development and the assistance available should ì
she decide to carry the pregnancy to full term is a reasonable ì
measure to insure an informed choice, one which might cause the ì
woman to choose childbirth over abortion. This requirement ì
cannot be considered a substantial obstacle to obtaining an ì
abortion, and, it follows, there is no undue burden.
Our prior cases also suggest that the strait- jacket, ì
Thornburgh, supra, at 762 (quoting Danforth, supra, at 67, n. 8), ì
of particular information which must be given in each case ì
interferes with a constitutional right of privacy between a ì
pregnant woman and her physician. As a preliminary matter, it is ì
worth noting that the statute now before us does not require a ì
physician to comply with the informed consent provisions if he or ì
she can demonstrate by a preponderance of the evidence, that he ì
or she reasonably believed that furnishing the information would ì
have resulted in a severely adverse effect on the physical or ì
mental health of the patient. 18 Pa. Cons. Stat. 3205 (1990). ì
In this respect, the statute does not prevent the physician from ì
exercising his or her medical judgment.
Whatever constitutional status the doctor- patient ì
relation may have as a general matter, in the present context it ì
is derivative of the woman's position. The doctor-patient ì
relation does not underlie or override the two more general ì
rights under which the abortion right is justified: the right to ì
make family decisions and the right to physical autonomy. On its ì
own, the doctor-patient relation here is entitled to the same ì
solicitude it receives in other contexts. Thus, a requirement ì
that a doctor give a woman certain information as part of ì
obtaining her consent to an abortion is, for constitutional ì
purposes, no different from a requirement that a doctor give ì
certain specific information about any medical procedure.
All that is left of petitioners' argument is an asserted ì
First Amendment right of a physician not to provide information ì
about the risks of abortion, and childbirth, in a manner mandated ì
by the State. To be sure, the physician's First Amendment rights ì
not to speak are implicated, see Wooley v. Maynard, 430 U. S. 705 ì
(1977), but only as part of the practice of medicine, subject to ì
reasonable licensing and regulation by the State. Cf. Whalen v. ì
Roe, 429 U. S. 589, 603 (1977). We see no constitutional ì
infirmity in the requirement that the physician provide the ì
information mandated by the State here.
The Pennsylvania statute also requires us to reconsider ì
the holding in Akron I that the State may not require that a ≡7É3 ìèphysician, as opposed to a qualified assistant, provide ì
information relevant to a woman's informed consent. 462 U. S., ì
at 448. Since there is no evidence on this record that requiring ì
a doctor to give the information as provided by the statute would ì
amount in practical terms to a substantial obstacle to a woman ì
seeking an abortion, we conclude that it is not an undue burden. ì
Our cases reflect the fact that the Constitution gives the States ì
broad latitude to decide that particular functions may be ì
performed only by licensed professionals, even if an objective ì
assessment might suggest that those same tasks could be performed ì
by others. See Williamson v. Lee Optical of Oklahoma, Inc., 348 ì
U. S. 483 (1955). Thus, we uphold the provision as a reasonable ì
means to insure that the woman's consent is informed.
Our analysis of Pennsylvania's 24-hour waiting period ì
between the provision of the information deemed necessary to ì
informed consent and the performance of an abortion under the ì
undue burden standard requires us to reconsider the premise ì
behind the decision in Akron I invalidating a parallel ì
requirement. In Akron I we said: Nor are we convinced that the ì
State's legitimate concern that the woman's decision be informed ì
is reasonably served by requiring a 24-hour delay as a matter of ì
course. 462 U. S., at 450. We consider that conclusion to be ì
wrong. The idea that important decisions will be more informed ì
and deliberate if they follow some period of reflection does not ì
stri