Claire

McKinney

February 20, 2012
This is a draft. Please do not cite or circulate.

Note: Im a terrible copy-editor. I apologize in advance for the typos and grammatical flaws that
follow.
Informed Consent or Informed Coercion? Ultrasounds, Abortion Politics, and the Politics of
Medical Knowledge
On May 19, 2011, Texas Governor Rick Perry signed a bill into law that would require
physicians to perform an ultrasound on women requesting an abortion, make audible a fetal
heartbeat, and describe the sonogram images.1 Although many commentators agreed that the
Texas law was the most restrictive ultrasound bill to be passed in the country, it was not the first
of its kind; 21 statehouses introduced ultrasound bills in 2010 (Sack 2010), and 20 already have
some law either requiring doctors to perform ultrasounds or to offer to show the results to
women if ultrasounds are performed (Guttmacher 2012). The intent of such laws are aligned with
the pro-life agenda, as evidenced by the model legislation, Womens Ultrasound Right to Know
Act, available from the anti-abortion group, Americans United for Life (2010). With the turn to
mandatory ultrasounds, what are anti-abortion activists attempting to accomplish? And,
separately, what do such laws assume about women and create as the social reality of women
seeking abortions?
In one practical sense, the laws are attempts to price providers out of offering abortions
and woman out of procuring abortions; the steep penalties outlined in the Texas law for failure to
perform ultrasounds may prove to be too onerous for already monetarily assaulted abortion
providers (Sparks 2011),2 and ultrasounds add significantly to the cost of abortion for women

1

Ultrasound names the procedure of producing an image through translation of high frequency sound waves,
called a sonogram. While technically different, the terms are often used interchangeably to reference the exam.
2
Malpractice suits brought by women and financed by anti-abortion groups have driven many abortion providers
out of practice and skyrocketed malpractice insurance for many others: Since a growing number of abortion
providers are unable to operate due to a lack of insurance coverage many women, particularly those living in rural
areas, will have even greater difficulty obtaining abortionsIn this respect, the use of malpractice litigation to de



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
(Guttmacher 2012).3 This monetary strategy, however, does not answer the question of why this
procedure.
The legislative record in Texas, including floor debate, reveals that the language
surrounding such ultrasound laws focuses not on prevention of abortion but on the need for
informed consent. The author of the House version of the bill, Representative Sid Miller argued,
Any time you offer more information, its more informationwe are giving [a woman] more
opportunity, not less (March 3, 2011). The invocation of more opportunity resonates with
liberal evocations of choice, while simultaneously restricting it; the woman seeking an abortion
has no ability to consent to the ultrasound itself. The ultrasound is the coercive, and sometimes
intrusive barrier (for early-term pregnancies, the only way to produce a sonogram is through
transvaginal exams, where probe transducers are used inside the vagina to produce the images) to
another wholly separate medical procedure. This has led some to accuse advocates of abortion
informed consent laws of bad faith at best and legalized harassment at worst. Critics of
neoliberalism would see a more familiar hypocrisy; given the receding of the language of rights
in favor of the language of choice, it is unsurprising that maximization of choice would come at
the cost of more coercion. Despite the easy accusations of informed coercion, the shift in the
recourse to informed consent as constituting the terrain of debate over abortion is worthy of
investigation on its own terms. Representative Miller was speaking for women who ought to be
empowered to make the best decision they can. While the ideology of anti-abortion politics may
drive the passage of such legislation, the discourse is one of protecting women from medical
malfeasance and enhancing their ability to choose.

facto restrict access to the abortion right is a significant example of the incrementalist strategy that has gained
increased support within the antiabortion movement. (Eidmann 2011, 27)
3
It is difficult to determine exactly how much an ultrasound will cost, as providers nationwide charge radically
different amounts, from under $100 to over $500 for abdominal ultrasounds.

Claire McKinney

February 20, 2012
This is a draft. Please do not cite or circulate.
For anti-abortion advocates, the information necessary for an informed choice crucially

includes the status and image of the fetus inside the womans uterus. Their political position
suggests a presumption that if women just knew what was growing inside them, they would
choose to bring the fetus to term. It is in the conceptualization fetal imagery as necessary
knowledge and the wider conception of informed consent that is of primary interest in this paper.
What does it mean that a woman cannot make an informed decision about her reproduction
without images of the fetus inside her? And what does it mean that anti-abortions advocates
presume that such images will drive women out of the abortion clinic and back into their proper
roles as mothers?
In this essay, I will begin with the question of what fetal imagery means in the context of
the abortion clinic. I will argue that while the centrality of fetal imagery in the anti-abortion
strategy is not unexpected, the flaw in their strategy lies in the lack of understanding of the role
of context in the interpretation of this imagery. Specifically, in the shift from penetrating popular
culture with images of fetuses as an evocation of life to the image of the fetus within the abortion
clinic, anti-abortion advocates have ignored how the locational, historical, and interpretive
differences could leave more options for how the fetal image is understood. Then I will consider
the place of ultrasound laws in the larger abortion informed consent legal context. While the use
of imagery is unique, the trope of informed consent has a long and troubling history that will
continually invite restrictions on reproductive rights due to its unexpected investment in the
state-doctor relationship instead of investment in the woman as decision maker. Finally, I will
argue that if one finds the subjection of women to unnecessary and intrusive medical procedures
problematic, reproductive actors, including medical professionals and political actors, must begin



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
with feminist justifications for the right to abortion; namely, the woman and her relational
context must be the center of reproductive discussions in the statehouse and the hospital.
Imagining the Fetus
The role of fetal imagery in American politics and culture has been discussed by many
and has revealed how visual culture, the pseudo-objectivity of photographs and medical
knowledge, and the interplay of captioning, fragments of images, and invocations of unitary
interpretations have worked to create the meaning of motherhood, fetal personhood, and pro-life
politics (Berlant 1997, Petchesky 1987, Stabile 1999, Davies 2009). Some early anti-abortion
advocates, such as Dr. John Willke, used images including the garbage bags filled with fetuses
supposedly found outside abortion clinics, to make explicit the horror of abortion (Stabile 1999).
Others used the emerging medical technologies and innovations in photography to provide
images of living fetuses still inside the womb, providing the first glimpses of what had been a
mainly a matter of speculation previously. These images were quickly harnessed in favor of
those arguing that the fetus is a distinct life, vulnerable and requiring the maintenance of an
environment (as the woman carrying the fetus is now understood) free from threat. As the fetus
began to be imaged more and more widely, pro-life advocates became able to attribute a unique
consciousness to it, allowing a strong frame of fetal life to dominate the moral debate over
abortion, as is evinced by the numerous pro-life advertisements making use of fetal imagery
(Berlant 1997).
Given the historical use of fetal imagery, it is not entirely surprising that the pro-life
movement has taken to the sonogram as one site in the battle of inches against abortion. For
instance, The Silent Scream (1984), a video created by NARAL founder and professed antiabortion convert, Dr. Bernard Nathanson, dramatized the experience of abortion for a fetus



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
caught in the silent scream of being removed from the uterus, marked a crucial moment in the
usage of fetal imagery by the anti-abortion movement (Petchesky 1987). As Rosalind Petchesky
notes, The Silent Scream plays on a way of understanding the world where surface impressions
are transformed into the whole message. And, as Lauren Berlant has argued in reference to this
film and others, the voice-over both reconstructs authority by acting as a consoling guide and
undermines the scene of any human authority by multiplying the kinds of voices silenced under
the regime of Roe v. Wade. (1997. 115) Thus, the film uses models, a grainy ultrasound image,
and pictures of disfigured post-abortion fetuses with Nathansons narration to characterize
abortion as unnecessary violence against unequivocally alive beings.
While the film has been subject to numerous studies, what remains surprising about the
video is not only the reduction of a sophisticated debate over the place of reproduction in
womens subordination and society to a set of images, but that the narration includes all the same
terms that still constitute the debate over abortion. The film decries the violence against an
unborn child, the greed of the abortion industry, the moral revulsion, guilt, and regret of
former abortionists and women who have undergone abortions, and, most notably for this
paper, the lack of informed consent of women undergoing the procedure. Towards the end of the
film, Nathanson narrates,
Women have not been told the true nature of the unborn child. They have not been shown the
true facts of what an abortion truly is. Women in increasing numbers...hundreds...thousands...and
even tens of thousands have had their wombs perforated, infected, destroyed. Women have been
sterilized, castrated, all as a result which they have had no true knowledge. This film and other
films which may follow like it must be a part of the informed consent for any woman before she
submits herself to a procedure of this sort (emphasis added, 1984).
Two things are notable about Nathansons narration. First, the film, for Nathanson, provides the
true nature of the unborn child. The idea that our true natures are best revealed through



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
medical knowledge and techniques is not unique to the fetus or to pregnancy. In fact, the shift
from quickening (the first stirring felt by the woman) as the moment when pregnancy became
recognized to hormonal tests and sonograms dramatically reveals the simultaneous shift of
authority from the pregnant woman to the medical professional. Thus, hegemony of medical
knowledge has been won through claims of scientific objectivity against patients, including
womens, subjective knowledge (Haraway 1996) as well as powerful moves to exclude other
health practitioners, such as midwives, from juridical legitimacy (Wolinsky and Brune 1994). Of
course, as critics of scientific objectivity have shown, scientific knowledge and medical practice
are as subjective as the knowledge and practices of the patients that constitute their object of
knowledge. For instance, the male body has been taken to be the unproblematic standard for
medicine, with suggestions for clinical trials to include women dismissed as scientifically
unsound, because womens hormones would produce abnormal results (Little 1996). More
generally, medical knowledge cannot be separated from a normative dedication to maximize
health, and thus denigrating anything which appears as abnormal as also normatively undesirable
(Shakespeare 1998). Not only are doctors individuals susceptible to all the human irrationalities
that others exhibit; they also interpret patients language through diagnostic criteria which
dismisses patients experience if it does not conform to known disease profiles (Wendell 1996).
Thus, when Nathanson argues that his interpretation of grainy ultrasound images is the true
nature, he is not hiding the ideological function of the ultrasound in anti-abortion politics. He is
performing the same legitimating move always available for doctors to perform when interacting
with patients, whose lack of knowledge of the truth of their pathologies or conditions require the
objectivity of medical interpretation.4

4

Of course, one should not ignore the half-truths embedded in Nathansons narration. Women were sterilized

Claire McKinney

February 20, 2012
This is a draft. Please do not cite or circulate.
Second, and related to the first point, videos such as the Silent Scream are presented as

crucial parts of womens informed consent in the context of abortion. Ostensibly, it is because
such films divulge the true nature of the fetus, and therefore give women the proper information
necessary to make the correct decision. For anti-abortion advocates, of course, there is only one
correct decision: not to undergo the procedure. But even if the correct choice is not so
circumscribed, one can assume that there are other metrics by which the informed decision is
deemed better than the uninformed decision, though it is beyond the scope of this paper to
consider them. Regardless, on the basis of an asserted notion that more information is necessarily
better for decision making, women who do not see ultrasound images or the medical waste that
results from an abortion are delegitimized as decision makers. The idea that the only legitimate
choices are those that are formed in reference to a determined set of information is a central part
of the anti-abortion strategy as well as the doctrine of informed consent in legitimating medical
practice. What was once seen as a purely diagnostic tool, the ultrasound, has been refigured as
the creator of the central truth of pregnancy: the status of the fetus.
These deployments of the fetus are still crude, insofar as the fetus imagined is meant to
stand for all potential fetuses. The newest move requiring a woman to view an ultrasound of the
fetus that resides in her uterus is an attempt to refine these practices and plays off of an
assumption about the relationship of every woman to their potential offspring. The use of
ultrasound requirements reflects a genuine belief that if women knew what really was going on
in an abortion, they would make the correct decision and carry their fetus to term, give birth to a
baby, and love it for the life it has always been. Therefore, the ultrasound not only exposes the

without their knowledge throughout the 20th century, often as eugenic measures or under the pretense of population
control (Carey 2010, Roberts 2010, Smith 2005). Historically, pro-choice advocates have been strong advocates for
forced or uninformed sterilization for the feebleminded, the poor, or women in the global South. The trick of the
anti-abortion message is to present proscription of abortion as the only alternative to the troubling alliance between
pro-choice politics and forced sterilization.



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
true nature of the fetus, but also provokes the true nature of the woman as mother to emerge
contra the false-desire for abortion.
The shift from the universal fetus and the anonymous sonogram to a particular womans
sonogram presents difficulties for both the authority of the anti-abortion interpretation and the
univocal meaning of the sonogram. The only survey data published on the use of ultrasounds
before abortion concludes that, when given the option, 72% of women seeking an abortion
decide to view the sonogram, 86% of women find it to be a positive experience, and none of the
women changed their mind about undergoing the procedure (Wiebe and Adams, 2009). Since the
Texas Ultrasound Law has gone into effect, the New York Times reported that women saw the
new requirement as just another onerous hurdle and that clinics found no women had changed
their minds (Ranshaw 2012). Anecdotally, many women are actually comforted by the
ultrasound image, perhaps because the fetus is not recognizable as a tiny human before the
gestational age of 10 weeks, before which about 80% of abortions take place (Guttmacher
Institute 2011). One report of a women who received an ultrasound before an abortion had her
saying, ''it just looked like a little egg, and I couldn't see arms or legs or a faceIt was really the
picture of the ultrasound that made me feel it was O.K.'' (Sack, 2011).5 It seems that the
supporters of bills similar to Texas Sonogram Law are operating under an assumption that most
women perceive the silent scream of their embryo or fetus when looking at the ultrasound,
rather than an unrecognizable little egg.

A possible interpretation of the apparent failure of ultrasounds to result in a decrease in the incidence of abortions
and the prevalence of women who seek abortion choosing to have an ultrasound when given the option could be
evidence that the procedure actually is part of informed consent; the status of the fetus actually does matter to
women making their decisions concerning pregnancy. I will deal with this possibility more fully when discussing
informed consent, but even if this were the case, the mandatory ultrasound would then contravene informed consent
for the 14% in the original study who declined the ultrasound when offered.

Claire McKinney

February 20, 2012
This is a draft. Please do not cite or circulate.
What is interesting about this empirical failure of ideology is not the question of why

anti-abortion advocates are wasting resources on a strategy that has little to no effect in regards
to their priorities, but why the strategy fails so completely. It is understandable that anti-abortion
activists would believe the sight of a fetus belonging to the woman about to get an abortion
might provoke deeper feelings of bonding, given the publicity of fetal imagery as well as the
fantasy that has developed alongside the disembodied image of the fetus. As Paul Lauritzen
notes, anti-abortion strategy has deliberately shifted away from the grisly images of
dismembered fetuses that paint the pregnant woman as a murderer towards striving to foster
hope and a sense of caring by displaying images or models of intact fetuses. The goal is no
longer to shock but rather to facilitate an emotional identification between a pregnant woman and
a fetus (2008, 51). Even an early article in the Journal of the American Medical Association
made claims (based on two cases) that the ultrasound was a crucial part of early parental bonding
for the pregnant woman (Petchesky 1987). What is fascinating is that both the relief that the
majority of women seeking abortion feel at seeing the ultrasound images and the assumption by
pro-life activists that such images would instead trigger bonding are most likely attributable to
the same cultural artifact: the fetal image in popular culture. Reproductive rights proponents have
often decried the misleading images used by the pro-life movement. But the digitally
manipulated figure of the fetus used by anti-abortion advocates, when it fails to match with the
reality of what is apparent on the ultrasound screen at five, eight, or twelve weeks, actually may
work to undercut the potential bond that may have existed.
The problem, therefore, is that while the ultrasound may work to produce the meaning of
being a woman in a particular way, the very detachment modern medicine allows between the
mother and the fetus may change what the reiteration of fetal imagery can mean in different



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
given circumstances. If we begin with Judith Butlers understanding of sex as performative, then
we can understand that there is no natural disposition of ones sex and its relation to pregnancy
or a fetus. Rather,
"sex" not only functions as a norm, but is part of a regulatory practice that produces the bodies it
governs, that is, whose regulatory force is made clear as a kind of productive power, the power to
produce--demarcate, circulate, differentiate-- the bodies it controls...It is not a simple fact or
static condition of a body, but a process whereby regulatory norms materialize "sex" and achieve
this materialization through a forcible reiteration of those norms. That this reiteration is
necessary is a sign that materialization is never quite complete, that bodies never quite comply
with the norms by which their materialization is compelled. (Butler, 1993, xii)
That is, those who see the ultrasound as productive of a natural bonding between woman and
fetus are actually producing the norm of bonding through their invocation. The problem, of
course, is that this norm is fighting with other norms that have developed around reproduction in
the late 20th century, partially abetted by the same medical technology that allows for fetal
bonding.
Since the 18th century, fetal imaging has often detached the image of the fetus from any
relation to the woman who is pregnant. Free-floating in an amniotic sac, our image of the fetus is
incredibly disembodied (Duden 1999). This detachment plays multiple simultaneous roles. First,
from a psychoanalytic point of view, the detachment of the fetus from the pregnant woman may
be necessary for a woman to eroticize the object and find pleasure in its presence .6 This distance
was once provided by quickening, when the movement in the womb signaled to a woman that
her pregnancy was real. The movement, out of the control of the pregnant woman, signaled that

6

Catherine Mills has suggested that the effect of the sonogram is more akin to Althusserian interpellation than
psychoanalytic objectification. She argues that The effect of ultrasound technology does not simply represent the
foetus, but has the effect of hailing the developing foetus into being as a baby and as a son or daughterThat is, the
process of interpellation effected by ultrasonographic imaging makes apparent a corporeal life that is distinct
from that of both the woman carrying the foetus (though interdependent with her) and of other viewers of the
imagein making possible the social appearance of the corporeal life of the foetus, ultrasound also establishes a
demand for ethical response. (2006, 107-108). However, even if this is a better interpretive frame, the same
contextual features of a mandated ultrasound in an abortion clinic in 2012 would interrupt the interpolative work of
creating either the fetus as child or the pregnant woman as mother.



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
something with its own will existed inside the woman. As such, the detachment necessary for the
creation of an object of love existed in the moment of quickening, or perhaps more concretely, at
the moment of birth. The ultrasound has taken on the cultural significance of these moments, as
the ultrasound technician identifies the fetus as distinct from the surrounding uterus. As
Petchesky has argued, the ultrasound
is a form of objectifying the fetus (and the pregnant woman herself as detached from the fetus),
perhaps such objectification and detachment are necessary for her to feel erotic pleasure in it. If
with the ultrasound image she first recognizes the fetus as real, as out there, this means that
she first experiences it as an object she can possess (1987, 283).
Once, it was the feeling of the being that signified distance; now, in our increasingly visual
culture, the seeing of the fetus as a thing growing independently of the womans own growth is
all that is necessary to signify the reality of the object of love, the future child.
Of course, detachment resulting in eroticization is only one possibility; detachment also
allows an object to be treated as a discardable thing. Thus, the objectification of the fetus that the
ultrasound produces can also result in dismissing its existence as integral to the subjectivity of
the pregnant woman. It is unsurprising that when a pregnant woman views an ultrasound after
she has already come to seek an abortion, she may interpret the ultrasound image of the fetus as a
detached and thus discardable thing, while pregnant women in prenatal care may interpret the
ultrasound as the first moment of bonding.7 The idea that the fetal image produced by an
ultrasound has a univocal meaning or an ultimate truth is belied by how context radically
transforms the interpretation of the fetus itself. Thus, when Nathanson or other anti-abortion

7

Bonding or its lack is not the only relationship that may be the focus of ultrasound laws. It may also be the case
that the ultrasound laws are not trying to impute anything about the role of the woman, but instead are there to evoke
the moral status of the fetus. That is, along with the mandated provision of brochures that outline the possibility for
adoption after birth, it may be the case that the purpose of the ultrasound is not relational at all. Rather, the
invocation of the fetus as a potential unique human life in visual form is meant to remind a woman seeking an
abortion the moral valence of her choice regarding the fetus. Even if this is the case, the contextual factors that make
bonding unlikely will equally apply to the unlikelihood of creating moral solicitude for the fetus even absent an
ethical bond.



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
activists argue that informed consent requires such fetal imagery, they are relying on an
untenable notion of information as objective and universal in its interpretation. As in most things,
context determines interpretation. Three contextual features potentially work against the bonding
that anti-abortion advocates assume is embedded in fetal imagery: the why, the when, and the
how.
Why a woman has a sonogram is an important part of the interpretation of the sonogram
itself. While for the woman desirous of her pregnancy may interpret the result of her first
ultrasound as the first picture to put in the baby book, the woman seeking an abortion may
interpret the ultrasound itself as just another hurdle (Women say, What do I have to do? Do I
have to come in two days, three days? What video do I have to watch? What do I have to listen
to? (Amy Hagstrom Miller, founder of Whole Womans Health clinics, quoted by Ramshaw
2012). Given all the hurdles to procuring an abortion that already exist in many states, by the
time a woman seeking an abortion sees the sonogram, her attitude towards her pregnancy may
already be negative and thus unlikely to be moved by grainy images on a screen.
As for the when, people who have been raised in late twentieth century America has been
inundated with fetal images used from car advertisements to anti-abortion campaigns. Had these
laws passed in 1980, their effects may have been more in line with a fetal life pro-life position.
However, two decades later, it would be unlikely that a womans first encounter with fetal
imagery would be her own sonogram. Therefore, one may already have nascent positions
concerning questions of fetal life and the moral valence of the fetus. As opposed to laws
mandating doctors inform women of the (unfounded) link between abortion and breast cancer, an
ultrasound will likely not reveal anything to the woman that she has not already been surrounded
with since childhood.

Claire McKinney

February 20, 2012
This is a draft. Please do not cite or circulate.
Finally, the how. While pro-reproductive rights advocates can read the anti-abortion

position latent in ultrasound laws, there is nothing in the performance of the ultrasound itself that
provides unequivocal pro-life messaging. Without the pro-life voice over, the sonogram is much
more ambiguous in its meaning. While it is the case that both Oklahoma and Texas require
details of fetal development and fetal auscultation (rendering the fetal heartbeat audible), these
medical facts are the only caption directly connected to the fetal imagery. While medical
authority remains intact, that authority is no longer unambiguously combined with a pro-life
interpretation of what exactly a fetal heartbeat is supposed to mean. Of course, some states like
South Dakota include a provision that doctors must inform women that the fetus is a "complete,
separate, unique and irreplaceable human being," but it is unclear whether the combination of
even such a statement would preclude the openness to interpretation fetal imagery may still
contain.
This section has tried to argue both why the turn to mandatory ultrasounds has become
part of the strategy of anti-abortion advocates and why, despite the prevalence of fetal life
narratives attached to fetal images, such strategies are likely to fail. The next section will
consider why we still ought to be concerned about ultrasound requirements. In using the
language of informed consent, these requirements point beyond themselves and towards a larger
problematic in the legislative and jurisprudential bases for reproductive rights. The reliance on
bioethics as the basis for reproductive rights rely on liberal notions of autonomy, individualism,
and choice that, when applied in medical contexts, undermine the importance of the particular
patient and delegitimize those who do not fit into such ideals, notably, women. Furthermore, the
reliance on bioethics in abortion law ensures that the relevant actors in reproductive rights are the
state and the doctor. The pregnant woman becomes the occasion for the codification of this



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
relationship of expertise, rather than the subject of reproductive decision making. The next
section will consider how informed consent oddly elides the patient and, in the abortion case,
works to reduce reproductive rights rather than enhance them.
Informed Consent in the Abortion Debate
The concept of informed consent exists in abortion jurisprudence as early as Roe v. Wade
(410 U.S. 113 (1973)). As Maya Manian has noted, the Roe court emphasized the physicians
judgment more than the womans in rendering abortion proscription unconstitutional (2009). The
Roe Court was largely drawing on previous American Medical Association published
proceedings in making such a determination. In the footnotes for the majority opinion of Roe v.
Wade, Justice Blackmun cites the 1970 AMA House of Delegates proceedings which read in
part,
Whereas, Abortion, like any other medical procedure, should not be performed when contrary to
the best interests of the patient since good medical practice requires due consideration for the
patient's welfare, and not mere acquiescence to the patient's demand; and
Whereas, The standards of sound clinical judgment, which, together with informed patient
consent, should be determinative according to the merits of each individual case; therefore be it
RESOLVED, That abortion is a medical procedure and should be performed only by a duly
licensed physician and surgeon in an accredited hospital acting only after consultation with two
other physicians chosen because of their professional competency and in conformance with
standards of good medical practice and the Medical Practice Act of his State (Proceedings of the
AMA House of Delegates 220 (June 1970); as cited in Roe v. Wade, 410 U.S. 113 (1973)).
Citing this outline of medical ethics is important for understanding informed consent in the
abortion debate. First, physicians are to consider the patients welfare, not merely their desires, in
deciding whether or not to perform an abortion. Therefore, a physician is bound by medical
ethics to refuse to provide the procedure if the abortion would harm their patient in some way
(the meaning of the patients welfare is ambiguous in this passage). Second, sound clinical
judgment accompanies informed consent. Informed consent does not stand alone in determining



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
when an abortion should or should not be performed. In fact, the passage keeps informed consent
as a secondary component of the decision making process, with the physicians judgment as the
grammatically and conceptually prior consideration. Finally, a physician was ethically bound to
consult two other doctors about the procedure. Thus, not only does the woman not have control
over the decision to abort, but the doctor-patient relationship so touted by both sides of the
ultrasound law debate is not the only relationship necessary to make the decision to abort a
fetus;8 physician-physician relationships are at least as important for determining the medical
ethics of abortion on a case-by-case basis.
However, the notion of the womans decision does exist Roe v. Wade in passages such as
this: The attending physician, in consultation with his patient, is free to determine, without
regulation by the State, that, in his [sic] medical judgment, the patient's pregnancy should be
terminated (as quoted in Manian 2009, n.126). The notion of consultation as opposed to
imposed judgment suggests that decision-making authority at least includes the pregnant woman.
That consultation, however, was framed as necessary to protect a womans psychological and
physical health. Thus, instead of being merely a question of liberty or autonomous decision
making, consultation was also, and perhaps more importantly as later abortion jurisprudence
suggests, necessary for women to be maintained in her health by an external authority. Of course,
this linking of decision making with attention to a womans health is unsurprising, given the
tenets of medical ethics of beneficence, non-maleficence, and autonomy.

In the Texas legislature debate, Representative Sarah Davis, who opposed the bill, argued that mandatory
ultrasounds violated the doctor-patient relationship, inserting the state illegitimately in what she highlighted as a
more personal and trusting relationship, based on the doctors interest in doing what is best for the patient. When
questioned on this point, the sponsor of the bill, Representative Sid Miller, argued that in abortions, the doctors
only interaction with the patient is during the procedure itself, and thus, the ultrasound mandate would actually
facilitate the creation of a doctor-patient relationship that otherwise would not develop.

Claire McKinney

February 20, 2012
This is a draft. Please do not cite or circulate.
It is the explicit fusion of informed consent with womens welfare that has transformed

what informed consent means in the context of abortion as opposed to informed consent statutes
in all other medical decisions, where the non-gendered patients welfare is presumably masculine
and thus not laden with many of the assumptions about a feminine decision maker.9 This
invocation of the welfare of women and the need for informed consent has become the
predominant legislative and judicial strategy of the past decade, as evidenced by Gonzales v.
Carhart (127 S. Ct. 1610 (2007)) and the increased invocation of both the psychological damage
done to women by abortion and the recent ultrasound laws. Carhart, which banned partial birth
abortions, relied on preventing the profound anguish and sadness a women, assumed to already
regret her abortion, would experience once she learned the details of how intact dilation and
extraction (D&E) abortions are performed. Despite psychological evidence to the contrary, the
Court relies on assumptions of womens natural role as mothers to deduce the presence of
enough instances of regret to justify a complete ban on a type of abortion.10
This invocation of womens regret or their need for enhanced informed consent rely on
stereotypes of womens natural roles as mothers, their need of special governmental protection,
and their emotional nature that can both be discounted as irrational and also exploited to ensure
they choose childbirth over abortion (Appleton 1985, Gans 1995, Daly 1995). All of these

9

Such assumption include, but are not limited to, womens less rational and more emotional state (emotion being
assumed to cloud or bias reasoning) and her natural desire to bear children and the psychological cost of not doing
so (Little 1996).
10
The relevant section of Gonzales v. Carhart is worth quoting in at length: Respect for human life finds an ultimate
expression in the bond of love the mother has for her childWhile we find no reliable data to measure the
phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life
they once created and sustained. Severe depression and loss of esteem can followIn a decision so fraught with
emotional consequence some doctors may prefer not to disclose precise details of the means that will be used,
confining themselves to the required statement of risks the procedure entailsIt is, however, precisely this lack of
information concerning the way in which the fetus will be killed that is of legitimate concern to the StateThe State
has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret
her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after
the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing
brain of her unborn child, a child assuming the human form. (1634)



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
gendered assumptions are at play in the ultrasound law of Texas and others like it, especially the
dual play of emotionalism in the context of womens supposed natural motherhood. A woman,
because of her emotional nature, cannot be trusted to make reproductive decisions on her own
(thus the state must aid her in that decision making); her emotional nature also suggests that the
only legitimate decision is one that affirms the emotional connection with her unborn child.
While commenters are right to point out how the abortion context allows informed consent to be
redefined, an implied presumption is that informed consent in its gender neutral application
would not be equally problematic when applied in the context of reproductive decision making.
This assumption is dangerous in its maintenance of the privileging of objective medical expertise
over the positions of those excluded from medical authority.
Informed consent is, in clinical practice, neither primarily about information nor consent.
In Akron v. Akron Center for Reproductive Health, Inc., the Supreme Court defined informed
consent as the giving of information to the patient as to just what would be done and as to its
consequences (462 U.S. 444). The Courts earlier invocation of informed consent as part of
physician decision making as well as the purpose the Court finds in informed consent (namely
the States interest in a patients health as well as the historical justification of informed consent
statutes as protecting patient autonomy), complicates this seemingly straightforward definition.
The dual aims of informed consent as codified in United States jurisprudence, patient health and
patient autonomy, actually work at cross-purposes. Patient health as a professed state interest, as
well documented by Michel Foucault, often works as the ideological drive for mechanisms that
create the possibility for subjectification, such that one either conforms to the ethics of health or
is subject to violence and total institutions such as the clinic, the prison, or the metal asylum due
to the inability to embody health or the lack of desire to do so. And, as Nikolas Rose has argued,



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
health has become an ethical imperative in the latter half of the twentieth century, transforming
individuals from patients into active consumers seeking to fulfill their responsibility for their
own and their families health (2007). While health as an ethical mandate has reshaped what it
means to be a patient, it has also reshaped the responsibility of the physician in an age where
bioethics first emerged. Informed consent has been touted as a neutral delivery of information
from doctors to patients such that patients can make the best decision. But there is nothing
neutral about the prior decisions of who decides what information is to be delivered and the
information as such. In fact, such decisions are most often based on the prevailing professional
practice of physicians. The problem with invoking informed consent as a basis for medical ethics
is the impossibility for a patient to consent to decisions made long before she has made it into the
doctors office. And given that medical ethics are also guided by beneficence, there is, at base,
something to which one can never consent, which is the understanding of what it means for
medical treatment to be in ones best interests.
The deferral to physician authority in determining the terms of consent can be found in
the basis for the injunction of several ultrasound laws. In such injunctions, found in Texas,11
Oklahoma, and North Carolina, courts have argued that ultrasound requirements violate
physicians first amendment rights to be free from compelled speech. In Texas, Justice Sam
Sparks found that,
There is no question the government has a compelling interest in making sure patients are
accurately informed about the risks of any medical procedure they are considering, including
those associated with both abortion and childbirthInstead, the Act compels physicians to
advance an ideological agenda with which they may not agree, regardless of any medical
necessity, and irrespective of whether the pregnant women wish to listen (79-84).

11

This injunction was recently overturned by a federal appeals court.



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
When the ultrasound law in Texas was enjoined for violating a physicians first amendment right
to be free from compelled speech, the court was implicitly affirming the non-neutral conclusion
that it is a physician who ought to determine what information is and is not necessary for a
decision about abortion to be made. As has been noted by both feminists and disability studies
writers, however, what doctors find to be relevant information often explicitly excludes what the
patient finds to be important (Wendell 1996). For instance, partially because of the health
imperative, doctors often encourage women to seek therapeutic abortions when their fetuses test
positive for a variety of genetic abnormalities (Parens and Asch 1998, Roberts 2010).12 In nonreproductive contexts, doctors will routinely only provide information about options that they
deem most likely to succeed, while discounting other potential treatments without any personal
research, such as non-Western medicinal treatments (Feyerabend 1993). Thus, to conclude that
informed consent is primarily about providing information to a patient to facilitate her decision
making is undermined by both the practice of informed consent as well as the focus of abortion
jurisprudence on the doctor and not the woman.
Even if we bracket many of the philosophical concerns about the possibilities of
autonomy or consent more broadly, in the context of medicine, consent remains a vexing
problem. As has been noted by bioethics scholars, people are often in situations where their
ability to consent is depressed when they encounter medical profesisonals(Manson and ONeill
2007). While individuals have different tolerance levels for pain, injury, and illness, they

12

None of this is meant to suggest that doctors have free reign in deciding what to disclose to patients; for all
medical procedures, there exists a mix of both professional and legal standards of informed consent to which a
doctor must adhere. In general, the moral standard is that of the reasonable person; what would a reasonable person
want to know about a medical procedure and their options in making a medical decision?
While others have laid out a criticism of the reasonable person standard in feminist theory (See Drucilla Cornells
discussion in The Imaginary Domain), my argument is that in both the codification of those standards as well as
their interpretation, informed consent ethics presume an abstract patient who can both speak and understand the
world in the same epistemological and ethical terms as the medical expert of the state and that some normative or
epistemological understandings of the world, such as the positive valuation of people with disabilities, is outside the
realm of understanding, and therefore cannot be attended to by a central focus on medical interpretations.



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
typically only seek out medical treatment when these conditions reach some level of where they
cannot cope with the condition on their own.13 Thus, the condition a person is in requires the
expertise of the physician. To consent in such a coerced position does not nullify the notion of
consent itself, of course. Being compelled to consent does not necessarily make the consent any
less binding, as social contract theory has argued for centuries. The problem arises when we
consider the conceptualization of the meaning of consent in the medical context. Informed
consent became a central tenet of medical ethics only after the Nuremburg Code of 1947, which
was a response to the medical abuse of individuals under the Nazi regime (Manson and ONeill
2007). As such, analogies to social contract theory break down. Medical ethicists stress the need
for specific, not general consent; one cannot consent to anything a doctor may or may not do, she
can only consent to specific procedures. Anti-abortion activists have tried to take advantage of
the dedication to specific as opposed to generalized consent in medical ethics by aiding women
to file malpractice suits against physicians who perform their abortions for not informing them
that the procedure would result in the death of a unique living being; the woman consented to
ending her pregnancy but did not consent to the inevitable result of terminating pregnancythe
death of a future child (Eidmann 2011). While the majority of these malpractice suits are found
to be without merit, they point to the problem of specific consent that underlies medical informed
consent statutes. That is, when people are consenting, they often do not either fully comprehend
what they consent to or are in a position of coercion in consent, which, given the history of
medical ethics, is exactly the position informed consent is supposed to eliminate.

13

The harder cases involve when one is being treated when one is unconscious or unable to express consent. In such
instances, medical treatment is still often provided, even if after recovery one expresses that she did not desire such
intervention.

Claire McKinney

February 20, 2012
This is a draft. Please do not cite or circulate.
What, then, keeps informed consent so firmly in place as a central feature of medical

ethics? As suggested above, the historical development of health as an ethical imperative has
transformed the meaning of concepts like informed consent away from their narrow meaning in
medical experimentation to be used as part of the legitimating discourse surrounding every
medical relationship. Or, as Nikolas Rose argues,
These new pastors of soma espouse the ethical principles of informed consent, autonomy,
voluntary action, and choice and nondirectiveness. In an age of biological prudence, where
individuals, especially women, are obliged to take responsibility for their own medical futures
and those of their families and children, these ethical principles are inevitably translated into
microtechnologies for the management of communication and information that are inescapably
normative and directional. These blur the boundaries of coercion and consent (2007, 29).
That is, informed consent is not about maintaining a boundary between autonomy and coercion,
but rather is one technique whereby patients become the proper subjects of responsibility for
health, learning the vocabulary and how to think about what health requires in any given
circumstance. As such, those who charge ultrasound laws as harassment masquerading as
knowledge rely on an untenable distinction between objective medical knowledge and directive
medical advice (Sanger 2008). Antiabortion advocates display a better understanding of the
practical meaning of informed consent when they attempt to import the public meaning of the
ultrasound image into the abortion clinic. They are trying to reinforce a belief that womens
health is inextricably tied with bonding with the fetus that develops inside her and projecting that
fetus a future as a human being.
This lack of distinction between informed consent and informed coercion is reinforced by
looking at abortion jurisprudence. As already discussed above, the womans decision has been
secondary in abortion jurisprudence since at least Roe v. Wade. While the woman was to be
consulted, her request was not enough to ethically sanction the abortion; her health had to be
negatively affected by the lack of an abortion to medically justify the procedure. Thus, a woman



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
could be coerced into continuing a pregnancy if a doctor found the procedure unnecessary for her
health (non-maleficence). The deeper question of abortion jurisprudence, from Roe to Carhart, is
who can legitimately coerce women in reproductive decisions and who cannot. Prior to Casey14
and Carhart, the state could never be the agent of coercion15, the doctor could be, spouses could
not be, but parents of minors could be. After Casey and Carhart, the state became a legitimate
agent of informed coercion in some contexts, namely, in providing for the informed consent of
the woman seeking an abortion (this includes a 24 hour waiting period, provision of information
about the health risks of abortion, including unfounded consequences such as increased risk of
breast cancer) With Carhart, the Court found that partial birth abortions were always detrimental
to womens psychological health (despite any evidence and with explicit briefs demonstrating
most women felt relief after abortions) and thus could be legitimately proscribed by the
legislature. The current legal wrangling of ultrasound laws in southern states represents the
inconclusiveness of the legitimacy of state coercion in this context as well, though if recent
abortion Supreme Court decisions are any indication, the state will win another legitimate facet
of its authority to interfere in abortion decision-making.
What makes ultrasound laws interesting is that, like other informed consent statutes in the
context of abortion, the battle is between the state and the doctor, not with the woman; she is the
object that presents the opportunity for this particular feature of state and physician relations to
be highlighted. The question is not what a woman seeking an abortion would find to be relevant
information, but rather, who gets to decide what she would find to be relevant information. When

14

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), revised the trimester structure
of Roe v Wade and made it legitimate for states to create restrictions on abortion as long as they did not create an
undue burden for women seeking abortions. The undue burden standard has been crucial to widening the state
interest in protecting potential human life against womens access to legal abortion.
15
In McRae, the Supreme Court found that the state did not have an obligation to fund abortions if they funded other
reproductive care, which could be construed as financial coercion from the state. Whether state inaction constitutes a
similar enough form of coercion as informed consent is an open question and is beyond the scope of this essay.



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
we understand the preoccupations of abortion jurisprudence to be centered on physicians and
what it means to inhabit the space not of the subject of medical expertise but rather the medical
expert as subject of legal expertise, we can begin to understand why the legalization of abortion
did not create a new understanding of womens decision making capability in the context of
reproduction.
A Different Vision of Reproductive Decision Making
What would it mean for legislatures and courts to take more than womens health into
consideration in abortion lawmaking? What ethics beyond the ethics of health would become
relevant and thus change both the content and the conclusion of abortion jurisprudence? It is a
crucial first step to create new legal arguments for why legal access to safe abortions is so crucial
to women. As long as the focus remains on what the state can and cannot do in the field of
abortions (undue burden being the current precedent for such adjudication) or on a third-party
perspective of a womans health, it will be impossible for the position of the woman as decision
maker to be invested with any real meaning. Jurisprudence ought to be recentered on
acknowledging that women have the capacity to make reproductive decisions that, even if they
may result in regret, must be respected because to not respect those decisions is to conclude that
women are less worthy of controlling their own lives than men because they are emotional or
irrational or inherently maternal. Such juridical rethinking would therefore remove at least the
state and potentially physicians from imposing some ideological framing of ultrasounds on
women seeking abortions. As Jaqueline Davies writes,
The use of ultrasound imaging by pro-life advocates to reveal a womans maternal identity to her
is disempowering [The pregnant women] is held hostage to interpretive norms that compel her
to have an ethical encounter with a fetus or at least to imagine or behave as if she has. This kind
of hostage taking is a kind of substitute violation that obscures ethical relation in addition to
violating a womans autonomy. (Davies 2009, 189)

Claire McKinney

February 20, 2012
This is a draft. Please do not cite or circulate.

That is, if women are to be understood as ethical agents, that ethics must develop by her own
taking up of relations as ethically meaningful, not subject to a political imposition of others
conceptions of which relations are ethically imbued.
Of course, this does not resolve the problems of the doctor-patient relationship as being
primarily determined by the doctors perspective to the point of ignoring the desires or
experiences of the patient. To merely reverse this relationship, such that the doctor must perform
whatever medical procedure the patient desires, would not alleviate the concerns of this paper
and would produce many more problematic outcomes than it resolves. How, then, can we
reconceive the encounter between the abortion provider and the woman seeking the abortion
such that the woman is not merely an object of medical subject-formation?
Primary in reconceiving the patient-doctor relationship is to recognize that this
relationship does not exist in isolation, and that womens health is not the only concern that must
be considered. The reduction of the concerns of abortion to this relationship in isolation from all
others (the state, significant others, other children or dependents, the fetus, friends, etc) provides
a false picture of how medicine and reproduction influences other aspects of our lives and vice
versa. Thus, any reconceptualization of the legal theories surrounding abortion rights, including
autonomy, liberty, and privacy, must deepen these concepts not just in the medical relationship,
but with a complex understanding of how the networks in which women are embedded matter
for both the meaning and the practice of reproductive decision making. First, it would force us to
recognize that what is problematic with informed consent statutes like the ultrasound law is that
they attempt to mandate relationships and their meaning between the woman, the doctor, and the
fetus. Such attempts, as empirical studies suggest, are likely to fail because while we may be able
to choose who we associate with, the development of the sense of self in relation to those others



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
is not a matter of disembodied autonomous choice. Rather, the exigencies of the unpredictability
of the development of those relationships as time progresses create different horizons of
possibility for meaning. Thus, while the image of the fetus produced by the ultrasound creates a
certain horizon of possibilities, which possibility will manifest is an open question. However, the
possible negative ramifications for mandating such images, including pricing women out of
abortions or retraumatizing women who must undergo the procedure to remove a wanted but
unviable fetus ought to give us pause about mandating such procedures.
Second, such a standpoint would allow us to understand why informed consent statutes
are so deeply unsatisfying. Informed consent presumes that a set of objective medical facts
presented by a medical expert provides all that is necessary for one to make a decision about the
treatment of ones body. Medical ethics try to rigorously deny what we know in practice;
whether at the doctor or the car mechanic, often individuals uncomfortably defer to the perceived
expertise of others to fix what they could not. To recognize that autonomy is mostly unattainable
in such compromised moments can transform how both doctors and pregnant women approach
their encounters. It could encourage more humility and attempts at mutual understanding.
Furthermore, as others have argued, issues of oppression and discrimination must be considered
when we talk about informed consent statutes, because the concepts of rationality and autonomy
that underlie its applications can create circumstances where womens competency is called into
question, especially in the emotional state of pregnancy (Sherwin 1992, Thachuk 2007). We
are embedded subjects and as such, informed consent cannot just rely on the doctors judgment
of relevant information, but also a deeper understanding of where the patient is coming from,
guiding what information may or may not aid in understanding. This form of deeper engagement
would require a much larger restructuring of our health industry such that time for deeper patient



Claire McKinney


February 20, 2012

This is a draft. Please do not cite or circulate.
engagement could be subsidized at rates necessary for doctors to support themselves. While such
transformation may seem untenable now, if feminist critiques of informed consent and medical
practice more broadly continue to gain traction, they may become practical realities.
The anti-abortion push to erode a womans right to reproductive freedom does not appear
to be abating; the most recent successful pushes rely not on defining the nature of the fetus, but
rather on protecting the woman from medical abuse. While such a push appears to at first be
sympathetic with the womens health movement of the 1970s, under the cover of informed
consent and creating better doctor-patient relationships, anti-abortion advocates have exposed the
non-feminist grounding of abortion rights as subject to reversal. While it may be the case that the
ultrasound laws, even if enforced, will have little consequence for a womans access to abortion,
they highlight the weaknesses with current focus on womens mental and physical health from
the perspective of the state and physician. Only be recentering our concern on the woman as a
subject embedded in relationships with multiple others can we come to new ways of conceiving
of abortion rights such that a womans reproductive choice regains political meaning.




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Claire McKinney

February 20, 2012
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