Danielle Lang

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In recent years, state legislatures have passed a record number of abortion restrictions, many of which regulate the dialogue between doctor and patient before a woman can access abortion. As increasingly aggressive doctor-patient regulations are challenged, the courts are struggling to determine what constraints, if any, Casey placed on the state’s ability to regulate abortion in the interest of protecting potential life, short of outright abortion bans. This Article revisits the compromise struck in Casey, tracing its attempt to accommodate two constitutional goals in tension—the state’s interest in protecting potential life and the woman’s liberty interest in autonomously determining her reproductive future—through the undue burden framework. The Article argues that the truthful and nonmisleading standard for informed consent regulations in Casey is pivotal to implementing the balance the Court sought to strike. It seeks to uncover the standard’s roots in prior informed consent case law in order to provide a context for lower courts implementing the standard. It demonstrates that the nonmisleading standard, at least in part, arises from the Court’s opinion in Akron.

This analysis is particularly important given the trajectory of state regulation of the doctor-patient dialogue. In Akron, the Court struck down a regulation where the state required the doctor to impart a number of disclosures that raised an inference that the state was seeking to mislead a woman’s decision-making. In Thornburgh, the Court struck down an informed consent law that sought to persuade women to continue their pregnancy but through nonmisleading means. In Casey, the Court reversed course and approved of regulations similar to those in Thornburgh but imposed a nonmisleading constraint on such regulation. Twenty years later, doctor-patient regulation more closely resembles the disclosures challenged in Akron than Thornburgh and Casey. Therefore, a close analysis of the nonmisleading standard from Akron to Casey can aid courts in implementing the standard to maintain the balance of constitutional interests that Casey sought to strike.