Every state requires that a patient consent before undergoing medical treatment and that the consent be “informed.” Three interrelated elements underlie the long-standing tradition of informed consent: Patients must possess the capacity to make decisions about their care; their participation in these decisions must be voluntary; and they must be provided adequate and appropriate information. However, abortion counseling requirements sometimes run afoul of these principles by requiring information that is irrelevant or misleading.
In addition to abortion counseling requirements, many states require that at least 24 hours elapse between the counseling and the abortion. In states in which the counseling must be obtained in person (rather than via mail, fax, Internet or phone) and the woman must then wait a specified time period, most often 24 hours, between the counseling and the procedure, the woman is effectively required to make two trips to the health care provider in order to obtain an abortion, a requirement that could constitute a hardship for some women. Moreover, several states also mandate when and how an ultrasound is performed prior to an abortion (see Requirements for Ultrasound).
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- 33 states require that women receive counseling before an abortion is performed: 29 of these states detail the information a woman must be given; 4 states have abortion-specific requirements generally following the established principles of informed consent.
- 25 of these states also require women to wait a specified amount of time—most often 24 hours—between the counseling and the abortion procedure.
- 12 states require that counseling be provided in person and that the counseling take place before the waiting period begins, thereby necessitating two separate trips to the facility.
- 28 states direct the state health agency to develop written materials: 11 require that the materials be given to a woman seeking an abortion, 17 require that the materials be offered to her.
- 16 states require that the woman be informed that she cannot be coerced into obtaining an abortion.
- Nearly all the states that require counseling require information about the abortion procedure and fetal development.
- 25 states require that the woman be given information about the specific procedure, while 24 require information about all common abortion procedures.
- 31 states require that the woman be told the gestational age of the fetus.
- 27 states include information on fetal development throughout pregnancy.
- 13 states include information on the ability of a fetus to feel pain.
- 5 states require that the woman be told that personhood begins at conception.
- 27 states include information about the risks of abortion.
- 6 states require medically inaccurate information that a medication abortion can be stopped after the woman takes the first dose of pills.
- 20 states include accurate information on the potential effect of abortion on future fertility; in 3 states, the written materials inaccurately portray this risk.
- 5 of the 7 states that include information on breast cancer inaccurately assert a link between abortion and an increased risk of breast cancer.
- 8 of the 22 states that include information on possible psychological responses to abortion stress negative emotional responses.
- 28 states include information on the health risks of continuing pregnancy.
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