On Tuesday, the Texas Senate advanced a bill that would enable doctors to lie to pregnant patients about fetal deformities in order to coercively dissuade them from choosing to have an abortion. Specifically, SB 25 eliminates withholding information regarding fetal health as a cause of action in so-called “wrongful birth” lawsuits, which prevents parents from pursuing financial damages.
Republican Sen. Brandon Creighton, the bill’s author, has repeatedly noted that the legislation sends “a message.”
“Senate Bill 25 will send a message that Texas does not believe that a life, in and of itself, is an injury in which parents need a damage payment,” Creighton told CNN earlier this month.
To advocates for women’s health, the message is different: that pregnant women can’t necessarily trust their doctors.
“SB 25 would allow doctors to lie to their patients,” Heather Busby, executive director at NARAL Pro-Choice Texas tells Rolling Stone over email. “Pregnant Texans deserve to feel like they can trust their doctor to provide them with all the information, and when the doctor does not do that, those families deserve to have a legal avenue to seek compensation to care for special needs children.”
Most people are shocked to discover that doctors today are not only allowed to, but in some cases are even forced to, lie to patients by politicians with no medical training or expertise. For years now, lawmakers across the country have inserted themselves between doctors and patients, interfering with their communications and undermining informed consent.
Informed consent is the concept that doctors need to obtain voluntary consent from patients to conduct tests and procedures, and also ensure they are equipped with all the information necessary to make the best decision, including risks, benefits and alternatives. While informed consent remains the ethical and professional ideal in health care, it clashes with increasingly intrusive and complex legislation that undermines its principles by coercing doctors under threat of arrest.
Many of these laws go far beyond policing communications. Politicians are attempting to micromanage how doctors practice medicine, down to dictating what specific techniques they can or cannot use. For example, laws have been introduced around the country arbitrarily criminalizing the common procedure known as dilation and evacuation, or D&E, even though it is safe and medically tested – and despite strong opposition from mainstream medical groups and individual doctors.
The majority of laws forcing doctors to lie to or withhold information from patients apply to doctors and health care providers treating pregnant people, but not all of them do. Just last month, doctors celebrated when the 11th Circuit knocked down a 2011 law dubbed the “gun gag law,” which restricted doctors and other health care providers from asking patients about firearms – a standard best-practice protocol, according to the American Academy of Pediatrics. And in September, the Pennsylvania Supreme Court struck down a physician gag order “restricting health care professionals from getting information about drilling chemicals that could harm their patients.” That legislation was enacted with the support of the fracking industry.
Many people are unaware of the rising tide of political interference into how doctors practice medicine. They have no reason to suspect that their doctor could be lying to them – and in fact must do so, by law, in some cases – when they ask questions about life-changing medical decisions: How is my pregnancy going? Do you see anything I should be concerned about?
States have been passing legislation almost identical to Texas’ SB 25 since the 1980s. Elizabeth Nash, senior state issues manager for the Guttamacher Institute, tells Rolling Stone that to date, at least 12 states have eliminated a doctor’s refusal to inform a patient about fetal health problems as a basis for damages.
“Wrongful birth” bills are just one approach, and not the most intrusive. Thirty-seven states have at least one law on the books interfering with how doctors practice medicine, “regardless of the provider’s professional judgment, ethical obligations or the needs of his or her patients,” according to a 2016 report from the National Partnership for Women & Families.
Then there are the laws that simply force doctors to lie to patients. For example, in Texas and Kansas, politicians have passed legislation forcing doctors to lie to patients about a false link between breast cancer and abortion, according to the National Partnership report. That false information is included in state-drafted materials in three more states that don’t specifically require doctors to provide that material – though of course, some certainly do.
In some states, a patient may be told that medical abortion – which is an abortion induced through a series of pills rather than a surgical procedure – is “reversible,” a claim not supported by medical consensus. Doctors are also forced to lie and/or give misleading and unfounded statements about fetal pain and the psychological and emotional risks of abortion to patients.
The second approach to misleading pregnant women is more passive. In many states, instead of directly mandating what doctors can say, politicians weave inaccurate information into state-created materials – then legislatively mandate that doctors refer patients to those specific materials. They are using a process created to ensure informed consent to misinform patients.
Last year, Rutgers University researchers published the first-ever state-by-state audit of “informed consent” materials in all 23 states that require health care providers to refer patients to state-created booklets, with a focus on statements about fetal development. The project’s team of investigators – experts in embryological and fetal development recruited through the American Association of Anatomists – concluded that 31 percent of the information included in the materials was medically inaccurate, with the highest percentage of inaccurate information devoted to the first trimester of pregnancy, when the vast majority of women have an abortion.
“You are pregnant and want to know everything you can about the options you have. You have a right to know the truth,” reads the introductory statement in Texas’ state-mandated informed consent booklet, which contains 41 medically inaccurate or misleading statements, out of 119 total, according to the Rutgers report.
“Informed consent is a vitally important part of ethical medical practice,” Grace Howard, a co-author of the report, tells Rolling Stone. “But it is strange that in the case of abortion, as opposed to every other medical procedure, the information given to patients comes from lawmakers, not from doctors.”
Lawmakers generally justify mandating these booklets by arguing that women need to be educated about pregnancy – which is ironic not only because of the high rate of medically inaccurate information, but also because the majority of women seeking an abortion are mothers.
The third way politicians encourage misinforming pregnant women is by supporting so-called crisis pregnancy centers, or CPCs. More than half the states funnel taxpayer dollars to fund CPCs; seven states even divert Temporary Assistance for Needy Families funds, aka welfare, into funding them. CPCs also receive federal funding, despite a 2006 special investigation by the House Committee on Government Reform finding that the “vast majority of pregnancy centers contacted in [the] investigation misrepresented the medical consequences of abortion, often grossly exaggerating the risks.”
Politicians play another role in the coordinated campaign to misinform the public about reproductive health care and abortion using taxpayer funds: They exploit the legislative process as a disinformation propaganda machine.
Here’s how this works, using the 20-week abortion restrictions that have flooded state legislatures as an example. There are two competing types of 20-week bills, based on model legislation drafted by two different anti-choice organizations. One approach argues that fetuses can feel pain at 20 weeks, an assertion not backed by medical science; that model bill was written by National Right to Life Committee, and is titled the “Pain-Capable Unborn Child Protection Act.” The competing 20-week ban, drafted by Americans United for Life, uses women’s health as a justification for the restriction, though an introductory note states the goal is to raise “public awareness of the negative impact of abortion.” In other words, like the Texas wrongful birth bill, it’s exploiting the legislative process to “send a message.” Politicians repeat this false and misleading information on the floor of the chamber while debating the legislation, and when talking to the press.
Journalists often unwittingly collude with this strategy, by quoting made-up phrases and fact-free medical claims in the course of statehouse reporting. In an effort to be balanced, they may also quote a women’s health advocate, who disputes the claims made by the anti-choice politician, giving both the true statement and the untrue statement equal weight, leaving readers to decide what is true and what is not – an increasingly difficult task, under the circumstances. In the course of the bill’s route through the legislative process, propaganda and medically inaccurate claims are amplified into mainstream conversation, all of which undermines the ideals of informed consent and evidence-based care.
Doctors are fighting back against this taxpayer-funded coordination by politicians. Professional medical organizations like the American College of Obstetricians and Gynecologists and the National Physicians Alliance have been pushing back on legislative interference, publishing statements when such laws are introduced. These days, it is not unusual to see physicians in white coats walking the halls of state capitol buildings, visiting lawmakers in their offices to ask them to stay out of their exam rooms.
The data tells its own story about political interference into how doctors practice medicine. Texas has long been a testing ground for radical abortion restrictions; it also has the highest maternal mortality rate not only in the country, but in the developed world. After Tuesday’s Texas Senate vote on SB 25, it now heads to the state House. But no matter what happens with the bill, it’s important to wake up to political interference into medicine, and realize that pregnant people now need to ask their doctors: Is this information coming from you, or from a lawmaker?