1 See, e.g., Suzanne K. Ketler, The Rebirth of Informed Consent: A Cultural Analysis of the Informed Consent Doctrine After Schreiber v. Physicians Insurance Co. of Wisconsin, 95 NW. U. L. REV. 1029, 1042-45 (2001) (describing a shift in the perception of the labor process as one that is “‘imminent and pre-ordained by nature’” where there is no room for choice to one that constitutes a series of ongoing choices requiring the laboring woman's involvement) (quoting Hall v. United States, 136 F. Supp. 187, 193 (W.D. La. 1955)).

2 See infra Part II.B. and accompanying text.

3 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”); see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (“These matters [(procreation)], involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of the liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”); Carey v. Population Servs. Int’l, 431 U.S. 678, 684 (1977) (recognizing an individual's “interest in independence in making certain kinds of important [and personal] decisions”); Roe v. Wade, 410 U.S. 113, 153 (1973) (holding that the right of privacy is “broad enough to encompass a woman's decision whether or not to terminate her pregnancy”).

4 Carey, 431 U.S. at 684. What precisely these “liberty interests” are can be difficult to identify. The Supreme Court has pointed to autonomy and self-governance, see Casey, 505 U.S. at 851, but these liberty interests also may reflect historical freedoms, bodily integrity, and sexual equality, see Suter, Sonia M., The “Repugnance” Lens of Gonzales v. Carhart and Other Theories of Reproductive Rights: Evaluating Advanced Reproductive Technologies, 76 GEO. WASH. L. REV. 1514, 1518-19 (2008).Google Scholar Moreover, while in Roe, reproductive rights were found to derive from “privacy,” the language in Casey switches to “liberty.” See Casey, 505 U.S. at 852. In this Article, I assume that all these liberty interests are involved.

5 See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (striking down on equal protection grounds an Oklahoma law that punished thrice-convicted felons showing “moral turpitude” with sterilization).

6 See Cohen, Amy F., The Midwifery Stalemate and Childbirth Choice: Recognizing Mothers-to- Be as the Best Late Pregnancy Decisionmakers, 80 IND. L.J. 849, 850 (2005)Google Scholar; Johnson, Dawn E., Shared Interests: Promoting Healthy Births Without Sacrificing Women's Liberty, 43 HASTINGS L.J. 569, 607-08 (1992).Google Scholar

7 See infra Part II.B.

8 See Suter, supra note 4, at 1516.

9 For a discussion of state regulation of abortion, see infra Part II.B.1.; see also Carbone, June & Cahn, Naomi, Embryo Fundamentalism, 18 WM. & MARY BILL RTS. J. 1015, 1019 (2010)Google Scholar; Suter, supra note 4, at 1576-77 (“As long as technology has been able to alter the reproductive process, the state has intervened to regulate or sometimes even ban particular reproductive procedures.”).

10 The breadth of constitutional protection for assisted reproductive technologies (ART) and medical decisions during labor is much less defined than protection for the right to abortion and is subject to dispute. See infra Part II.B.2.-3.; see also Carbone & Cahn, supra note 9; Theresa Glennon, Regulation of Reproductive Decision-Making, in REGULATING AUTONOMY: SEX, REPRODUCTION AND FAMILY 148, 152 (Shelley Day Sclater et al. eds., 2009) (describing the state's broad interests in embryos and the likely legal effects of such interests); Suter, supra note 4, at 1576.

11 The Supreme Court recognized the integral role that doctors play in making reproductive choices in Roe v. Wade, 410 U.S. 113, 163 (1973)Google Scholar (“The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated.”). Yet, in later cases addressing reproductive liberties, the Court placed its emphasis on the individual. See cases cited supra note 3; see also NAOMI R. CAHN, TEST TUBE FAMILIES: WHY THE FERTILITY MARKET NEEDS LEGAL REGULATION 1 (2009) (characterizing undergoing fertility treatments to reproduce as a paradox because fertility treatments are, “for some, the most intimate of intimate acts and, for others, a multibillion-dollar business that simultaneously creates our closest relationships”).

12 See infra notes 233-40, 258-65 and accompanying text.

13 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992). For a thorough discussion of permissible legislation in the context of ART, see Glennon, supra note 10, at 150 (citing CHARLES P. KINDREGAN, JR. & MAUREEN MCBRIEN, ASSISTED REPRODUCTIVE TECHNOLOGY: A LAWYER's GUIDE TO EMERGING LAW AND SCIENCE (2006), Henne, Melinda & Bundorf, M. Kate, Insurance Mandates and Trends in Infertility Treatments, 89 FERTILITY & STERILITY 66 (2007)CrossRefGoogle ScholarPubMed) (discussing the limited nature of legislation limiting ART). But see Adamson, David, Regulation of Assisted Reproductive Technologies in the United States, 39 FAM. L.Q. 727, 731 (2006)Google Scholar (discussing the limited but applicable regulation of assisted reproduction in the U.S.). On the other hand, England and many other European countries do regulate the use of ART more comprehensively, including storage of donated gametes, in vitro fertilization (IVF), and surrogacy. Id. at 739-42. Yet, England does not regulate the use of fertility drugs. See Glennon, supra note 10, at 151; see also infra Part II.B.2.

14 See discussion of the informed consent doctrine infra Part I.A.

15 See, e.g., John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973); Ann MacLean Massie, Regulating Choice: A Constitutional Law Response to Professor John A. Robertson's Children of Choice, 52 WASH. & LEE L. REV. 135, 151 (1995); Rao, Radhika, Constitutional Misconceptions, 93 MICH. L. REV. 1473, 1489-97 (1995)CrossRefGoogle Scholar; Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE L.J. 1694, 1696-98 (2008); Suter, supra note 4, at 1514.

16 See Goodwin, Michele, A View from the Cradle: Tort Law and Private Regulation of Assisted Reproduction, 59 EMORY L.J. 1039, 1088-98 (2010)Google Scholar (describing how torts in general are underexplored in considering how to limit and provide remedies for those harmed by problematically negligent or reckless reproductive choices).

17 See, e.g., Manian, Maya, The Irrational Woman: Informed Consent and Abortion Decision- Making, 16 DUKE J. GENDER L. & POL’Y 223, 239 (2009).Google Scholar

18 See Kapp, Marshall B., Informed Consent and Abortion, 1993 WIS. L. REV. 619, 622 (1993)Google ScholarPubMed; Thachuk, Angela, Midwifery, Informed Choice, and Reproductive Autonomy: A Relational Approach, 17 FEMINISM & PSYCHOL. 39, 42-43 (2007).CrossRefGoogle Scholar

19 See, e.g., Kapp, supra note 18, at 622-23; Manian, supra note 17, at 290.

20 See, e.g., Thachuk, supra note 18, at 42 (“Many women, faced with discrepancies between what they had expected and hoped for, and what they actually encountered, questioned the unnecessary interventions and often alienating practices ensconced within the rituals of birth in North America.”).

21 See Manian, supra note 17, at 290-99.

22 See id. at 223; Kapp, supra note 18, at 622.

23 See, e.g., Kathleen G. Chewning, Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds: The Journey to Protect Women's Mental Health with Relevant, Truthful and Not Misleading Information in Informed Consent Abortion Statutes, 3 CHARLESTON L. REV. 601 (2009); Kapp, supra note 18, at 619; Manian, supra note 17, at 223; Pile, Whitney D., The Right to Remain Silent: A First Amendment Analysis of Abortion Informed Consent Laws, 73 MO. L. REV. 243 (2008)Google Scholar; see also infra Part III.A.1.

24 See, e.g., Kubasek, Nancy K., Legislative Approaches to Reducing the Hegemony of the Priestly Model of Medicine, 4 MICH. J. GENDER & L. 375, 375-93 (1997)Google Scholar (describing negative implications of the “priestly” model of medicine for women); Napoli, Lisa, The Doctrine of Informed Consent and Women: The Achievement of Equal Value and Equal Exercise of Autonomy, 4 AM. U. J. GENDER & L. 335, 339-42 (1996).Google Scholar

25 See, e.g., CAHN, supra note 11, at 146-54; Glennon, supra note 10, at 152-65; Laing, Jacqueline A. & Oderberg, David S., Artificial Reproduction, the ‘Welfare Principle,’ and the Common Good, 13 MED. L. REV. 352 (2005).CrossRefGoogle Scholar

26 See Jody Lynee Madeira, Common Misconceptions: Reconciling Legal Constructions of Women in the Fertility and Abortion Contexts (2010) (unpublished manuscript) (on file with author) (pointing to instances in which scholars undermine women's choices in the fertility context); Barbara Katz Rothman, The Meanings of Choice in Reproductive Technology, in TEST TUBE WOMEN: WHAT FUTURE FOR MOTHERHOOD? 23, 31 (Rita Arditti et al. eds., 1984); Suk, Jeannie, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse, 110 COLUM. L. REV. 1193, 1194-96 (2010)Google Scholar; Waldman, Ellen, Disputing Over Embryos: Of Contracts and Consents, 32 ARIZ. ST. L.J. 897, 923-24 (2000)Google ScholarPubMed; see also Law, Sylvia A., Childbirth: An Opportunity for Choice that Should Be Supported, 32 N.Y.U. REV. L. & SOC. CHANGE 345, 364-66 (2008)Google Scholar (describing a history of undermining women's reproductive choices).

27 See supra note 26.

28 See id.

29 See Suk, supra note 26, 1251-52 (arguing that concern about women's trauma undermines women's autonomy in the abortion context).

30 See infra Part III.A.2.

31 Some commentators have pointed to all three contexts as “reproductive technologies.” See SUSAN SHERWIN, NO LONGER PATIENT: FEMINIST ETHICS & HEALTH CARE 117 (1992).

32 See Suk, supra note 26, at 1241-52.

33 See infra Parts IV.A.-B.

34 See infra Part II.B.2.

35 I use the term “informed consent process” distinctly from the “legal doctrine of informed consent.” The latter refers to the narrow tort law doctrine while the former embodies all the information that a doctor conveys to the patient prior to performing a medical procedure in order to inform and influence her decision.

36 See infra Part III.A.

37 Robin West, The Nature of the Right to an Abortion: A Commentary on Professor Brownstein's Analysis of Casey, 45 HASTINGS L.J. 961 (1994).

38 See, e.g., Schneider, Carl E., Some Realism About Informed Consent, 145 J. LABORATORY & CLINICAL MED. 289, 289-91 (2005)CrossRefGoogle ScholarPubMed (arguing that informed consent that requires patients to process information and make independent decisions is unrealistic).

39 Id. at 289, 291.

40 See Canterbury v. Spence, 464 F.2d 772, 789 (D.C. Cir. 1972) (“[Informed consent law] does not accept the paternalistic notion that the physician may remain silent simply because divulgence might prompt the patient to forego therapy the physician feels the patient really needs.”).

41 The American Medical Association's Code of Medical Ethics reflects and reinforces the legal doctrine. AMERICAN MEDICAL ASSOCIATION, CODE OF MEDICAL ETHICS Op. 10.01-.02 (2010), available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medicalethics. shtml.

42 Schloendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 93 (1914) (“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.”) (emphasis added) (assault in this context is comparable to the modern usage of the tort of battery as actual contact occurred); 1 DAVID W. LOUISELL & HAROLD WILLIAMS, MEDICAL MALPRACTICE Ch. 8, § 8.06[2], at 8-103 to -104 (2011) (“[M]ost courts today reserve the assault and battery theory for cases in which the patient has not consented to the procedure actually performed, while using negligence as the basis for claims that the provider obtained the patient's consent without making a proper disclosure.”) (footnote omitted); see also Mohr v. Williams, 104 N.W. 12, 12, 15-16 (Minn. 1905); Katz, infra note 55.

43 Georgia was the last state in the U.S. to adopt a claim of informed consent based on negligence. See Ketchup v. Howard, 543 S.E.2d 371, 373 (Ga. Ct. App. 2000).

44 See Salgo v. Leland Stanford Jr. Univ. Bd. of Trs., 317 P.2d 170, 181 (Cal. Ct. App. 1957) (holding that the doctor is obligated to obtain consent after first disclosing “any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment”).

45 See Canterbury, 464 F.2d at 786.

46 See, e.g., id. at 787; Harnish v. Children's Hosp. Med. Ctr., 439 N.E.2d 240, 243, 245 (Mass. 1982); Scott v. Bradford, 606 P.2d 554, 559-60 (Okla. 1980); see also AMERICAN MEDICAL ASSOCIATION, POLICIES OF THE AMA HOUSE OF DELEGATES: INFORMED CONSENT AND DECISION MAKING IN HEALTH CARE H-140.989(1) (2009), available at http://www.ama-assn.org/ama/pub/ about-ama/our-people/house-delegates/policyfinder.shtml (accept “Terms and Conditions;” then click “Search AMA PolicyFinder Online;” then search “140.989”) (“Health care professionals should inform patients or their surrogates of their clinical impression or diagnosis; alternative treatments and consequences of treatments, including the consequence of no treatment; and recommendations for treatment.”).

47 Canterbury, 464 F.2d at 784; DAN B. DOBBS, THE LAW OF TORTS 655 (2000); John Duncan et al., Using Tort Law to Secure Patient Dignity, TRIAL, Oct. 2004, at 42, 47. Compare Woolley v. Henderson, 418 A.2d 1123, 1129-30 (Me. 1980) (reasonable medical practitioner rule), with Jaskoviak v. Gruver, 638 N.W.2d 1, 8 (N.D. 2002) (reasonable patient rule).

48 See, e.g., Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119 passim (Tenn. 1999) (discussing objective and subjective alternatives and instituting a compromise position).

49 Clark v. Miller, 378 N.W.2d 838, 845-46 (Minn. Ct. App. 1986); Meisel, Alan, A “Dignitary Tort” as a Bridge Between the Idea of Informed Consent and the Law of Informed Consent, 16 L. MED. & HEALTH CARE 210, 215 (1988).Google ScholarPubMed A patient who has suffered dignitary harm but no physical damage can conceivably bring a claim of negligent infliction of emotional distress. Most jurisdictions, however, have limited recovery rules for pure emotional harm in the absence of tangible physical injury. These rules require, for example, that the plaintiff endure some sort of physical impact, occupy a zone of danger where physical injury was likely, or experience distress so severe that it is followed by actual physical manifestation of the mental anguish. Thus, in the vast majority of cases such a claim will not be able to be brought in the informed consent context. See generally DOBBS, supra note 47, at 835-39, 847-48; Merritt, Andrew L., Damages for Emotional Distress in Fraud Litigation: Dignitary Torts in a Commercial Society, 42 VAND. L. REV. 1, 21-23 (1989).Google Scholar

50 See Mink v. Univ. of Chi., 460 F. Supp. 713, 717-18 (N.D. Ill. 1978); Lugenbuhl v. Dowling, 701 So.2d 447, 455 (La. 1997) (finding that where the patient was unable to prove either physical damages or pecuniary loss from a physician's breach of informed consent duty but could prove that a physician disregarded the patient's expressed wish that a mesh be used in his hernia repair surgery, the patient is entitled to compensatory damages for injury to his personal dignity and right of privacy, anxiety, and mental distress); Richard Saver, Medical Research and Intangible Harm, 74 U. CIN. L. REV. 941 passim (2006) (noting the need for dignitary damages in the human research context).

51 Schloendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 93 (1914).

52 See, e.g., Janet Dolgin, The Legal Development of the Informed Consent Doctrine: Past and Present, CAMBRIDGE Q. HEALTHCARE ETHICS 97, 97 (2010).

53 317 P.2d 170, 181 (Cal. Ct. App. 1957).

54 See Natanson v. Kline, 350 P.2d 1093, 1104 (Kan. 1960) (“Anglo-American law starts with the premise of thorough-going self-determination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of life-saving surgery, or other medical treatment.”).

55 See Jay Katz, Informed Consent: Ethical and Legal Issues, in ETHICAL ISSUES IN MODERN MEDICINE 87 passim (John D. Arras & Bonnie Steinbock eds., 1995).

56 See id.

57 See Gatter, Robert, Informed Consent Law and the Forgotten Duty of Physician Inquiry, 31 LOY. U. CHI. L.J. 557, 558 (2000).Google ScholarPubMed See also infra text accompanying note 365, for a discussion of shared decision making that advocates, in contrast to current practice, the discussion of patient goals and interests.

58 Gatter, supra note 57, at 559.

59 See, e.g., INTERNATIONAL FEDERATION OF GYNECOLOGY AND OBSTETRICS (FIGO), COMMITTEE FOR THE ETHICAL ASPECTS OF HUMAN REPRODUCTION AND WOMEN's HEALTH, ETHICAL ISSUES IN OBSTETRICS AND GYNECOLOGY 13-5 (2009) [hereinafter FIGO COMMITTEE REPORT]. There is a requirement in some states that the doctor answer questions posed by patients, but this should be distinguished from the requirement to have a conversation and ask and elicit questions from patients through dialogue. See infra note 349 and accompanying text.

60 See Gatter, supra note 57.

61 See, e.g., Salgo v. Leland Stanford Jr. Univ. Bd. of Trs., 317 P.2d 170, 181 (Cal. Ct. App. 1957) (physicians “have the duty to disclose any facts which are necessary to form the basis of an intelligent consent by the patient to proposed treatment”); Natanson v. Kline, 350 P.2d 1093, 1106 (Kan. 1960) (detailing medical information that must be provided); Mitchell v. Robinson, 334 S.W.2d 11 (Mo. 1960); FIGO COMMITTEE REPORT, supra note 59; LEWIS VAUGHN, BIOETHICS: PRINCIPLES, ISSUES AND CASES 144-49 (2010) (describing the type of information that cases and legislatures have mandated doctors to disclose: the nature, risks, and alternatives and benefits of the procedure); Jaime Staples King & Moulton, Benjamin W., Rethinking Informed Consent: The Case for Shared Decision Making, 32 AM. J.L. & MED. 429, 434-45 (2006)Google Scholar (describing the narrow doctrine of informed consent).

62 See Gatter, supra note 57, at 571 (noting the lack of case law addressing “the requirement that physicians assess the subjective characteristics of their patients”).

63 See, e.g., Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 483-85 (Cal. 1990); see also Howard v. Univ. of Med. & Dentistry of N.J., 800 A.2d 73 (N.J. 2002) (physician's misrepresentations of credentials are grounds for tort of informed consent); Johnson v. Koekemoor, 545 N.W.2d 495 (Wis. 1996); Dolgin, supra note 52, at 102-04; Twerski, Aaron D. & Cohen, Neil B., The Second Revolution in Informed Consent: Comparing Physicians to Each Other, 94 NW. U. L. REV. 1 (1999).Google ScholarPubMed

64 See Susan Sherwin, Relational Approach to Autonomy, in THE POLITICS OF WOMEN's HEALTH: EXPLORING AGENCY AND AUTONOMY 26-28 (Susan Sherwin ed., 1998).

65 Id. at 26, 29-33; FIGO COMMITTEE REPORT, supra note 59, at 219-20.

66 See Sherwin, supra note 64, at 31.

67 Id. at 26.

68 See generally Gatter, supra note 57.

69 See, e.g., Goodwin, supra note 16, at 1044-69 (setting forth the range and risks of modern reproductive technologies); Thachuk, supra note 18, at 42 (“With an escalating array of new reproductive technologies, women are now offered a diverse range of choices with regards to their reproductive lives.”).

70 See, e.g., Daar, Judith F., Assisted Reproductive Technologies and the Pregnancy Process: Developing an Equality Model to Protect Reproductive Liberties, 25 AM. J.L. & MED. 455, 455 (1999)Google ScholarPubMed; Derek Morgan, Frameworks of Analysis for Feminisms’ Accounts of Reproductive Technology, in FEMINIST PERSPECTIVE ON HEALTH CARE LAW 192, 202 (Sally Sheldon & Michael Thomson eds., 1998) (discussing the array of reproductive choices available and the transformation of the reproductive process through technological intervention); Stephanie Saul, Birth of Octuplets Puts Focus on Fertility Clinics, N.Y. TIMES, Feb. 11, 2009, at A1; Stephanie Saul, Building a Baby with Few Ground Rules, N.Y. TIMES, Feb. 12, 2009, at A1; Stephanie Saul, New Jersey Judge Calls Surrogate Legal Mother of Twins, N.Y. TIMES, Dec. 31, 2009, at A14.

71 Law, supra note 26, at 345 (recounting and analyzing the National Institute of Health's recognition that elective C-sections may be a reasonable alternative to vaginal delivery).

72 See, e.g., Chojnacki, Benjamin Grant, Pushing Back: Protecting Maternal Autonomy from the Living Room to the Delivery Room, 23 J.L. & HEALTH 45, 47-53, 76-77 (2010)Google Scholar; Cohen, supra note 6.

73 See infra notes 77-96 and accompanying text.

74 While there are complex male infertility treatments, as they do not involve the same physical invasiveness and the intertwined nature of fetus and woman in women's fertility treatments, they are not included in this analysis.

75 See, e.g., Laufer-Ukeles, Pamela, Approaching Surrogate Motherhood: Reconsidering Difference, 26 VT. L. REV. 407 (2002)Google ScholarPubMed (reviewing the different ethical and legal dilemmas in surrogate motherhood).

76 See Thachuk, supra note 18, at 42.

77 Roe v. Wade, 410 U.S. 113, 153 (1973) (stating that the right of privacy is “broad enough to encompass a woman's decision whether or not to terminate her pregnancy”).

78 Id. at 155.

79 Id. at 163-65.

80 See id.

81 505 U.S. 833, 878-79 (1992).

82 See id. at 886.

83 Id. at 882 (“[T]he giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth” may not amount to an undue burden.).

84 Id. at 893-94.

85 See id. at 882-83 (allowing certain limitations on a woman's right to abort as long as no undue burden is placed upon that right); Siegel, supra note 15, at 1753 (“Under the undue burden framework, dignity-respecting regulation of women's decisions can neither manipulate nor coerce women: the intervention must leave women in substantial control of their decision, and free to act on it.”).

86 The plurality, in considering what information can be conveyed to a women contemplating abortion, remarks, “[i]f the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible.” Casey, 505 U.S. at 882.

87 Id. at 881-82.

88 See id. at 882 (holding that states may attempt to dissuade women from having abortions so long as state barriers are not an undue burden on that right).

89 Currently, over twenty states have abortion statutes containing informed consent provisions. See, e.g., ARK. CODE ANN. § 20-16-903 (2011); IDAHO CODE ANN. § 18-609 (2011); MINN. STAT. § 145.4242 (2011); WIS. STAT. § 253.10(3) (2011); see also Chewning, supra note 23, at 605. Most such statutes are modeled broadly on the Pennsylvania statute scrutinized in Casey and require mandatory waiting periods, along with the provision of information about services for adoption and some facts about the fetus. See generally 18 PA. CONS. STAT. ANN. § 3205 (2011).

90 See, e.g., Sanger, Carol, Seeing & Believing: Mandatory Ultrasound and the Path to Protected Choice, 56 UCLA L. REV. 351 (2008).Google Scholar

91 550 U.S. 124, 162-64 (2007).

92 Casey, 505 U.S. at 883 (“[The Court] departs from the holdings of Akron I and Thornburgh to the extent that [it now] permit[s] a State to further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the State expresses a preference for childbirth over abortion.”).

93 What constitutes truthful and non-misleading information is subject to much dispute. See, e.g., Eubanks v. Schmidt, 126 F. Supp. 2d 451, 458-59 (W.D. Ky. 2000) (finding that ideological or controversial information is not necessarily untruthful or misleading); Chewning, supra note 23, at 609-12; Manian, supra note 17, at 253.

94 Calling the fetus a human being has been found to be inappropriate. Compare Casey, 505 U.S. at 875-76 (avoiding use of the term “human being” to refer to “fetus”), and Acuna v. Turkish, 930 A.2d 416, 419-20 (N.J. 2007) (refusing to recognize common law duty in pre-abortion consultations for doctors to call fetuses human beings), with Gonzales, 550 U.S. 124, 127 (referring to “mother and child” instead of “woman and fetus”), and Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 735-36 (8th Cir. 2008) (finding that referring to a fetus as a “human being” is not misleading or untruthful taken in context of the entirety of the information required to be provided by statute).

95 See supra note 35.

96 See Manian, supra note 17, at 251 (enacting informed consent legislation in order to protect the right of the unborn “contradicts the underlying purposes of the doctrine of informed consent”).

97 See discussion of feminist critiques of state involvement in the informed consent conversation infra Parts III.A.1, IV.A.

98 See Cohen, supra note 6, at 851-53.

99 For a similar argument in the context of the mandatory use of ultra-sounds before providing an abortion, see Sanger, supra note 90, at 360.

100 See infra note 210 and accompanying text.

101 See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”); Skinner v. Oklahoma, 316 U.S. 535, 541-43 (1942) (recognizing the right to procreate as a fundamental right in the context of prohibiting sterilization of imprisoned criminals); Goodwin v. Turner, 908 F.2d 1395, 1398 (8th Cir. 1990) (upholding prohibition on ART in prisons); Percy v. New Jersey, 651 A.2d 1044, 1047 (N.J. Super. Ct. App. Div. 1995) (assuming a fundamental constitutional right to procreate, but upholding prohibitions on ART in the prison context).

102 See Robertson, John A., Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, 69 VA. L. REV. 405, 434-36 (1983)CrossRefGoogle ScholarPubMed; Daar, supra note 70, at 464-65.

103 For instance, in ART genetic parenthood is disaggregated from natural gestational and genetic parenthood, and thus bodily integrity and woman's privacy are not necessarily involved. See Suter, supra note 4, at 1528-29.

104 See, e.g., id. at 1520-64; Rao, supra note 15, at 1475 (highlighting the lack of clarity in constitutional jurisprudence regarding procreative liberty); Sunstein, Cass R., Is There a Constitutional Right to Clone?, 53 HASTINGS L.J. 987, 989 (2002)Google Scholar (noting that the Supreme Court leaves “a great deal of ambiguity” as to whether there is a fundamental right to use ART).

105 Suter, supra note 4, at 1528.

106 Carbone & Cahn, supra note 9, at 1020 (“[A]ssisted reproduction itself, despite the use of fertility enhancing drugs and other techniques that pose potential health risks to mother and children, has received relative little scrutiny.”); Glennon, supra note 10, at 150 (“In the absence of such regulation, a thriving market-based system of fertility clinics and intermediaries for gamete donation and surrogacy has developed. Patients seeking treatment for infertility do so through this private, mostly for-profit, market.”).

107 Daar, Judith F., Regulating Reproductive Technologies: Panacea or Paper Tiger?, 34 HOUS. L. REV. 609, 658 (1997)Google ScholarPubMed (noting that industry self-regulation coupled with market forces driven by more informed and empowered consumers will do far more good than any additional government regulation); Robertson, John A., Assisted Reproductive Technology and the Family, 47 HASTINGS L.J. 911, 919-21 (1996)Google ScholarPubMed (discussing medical standards determined by professional organizations). But see CAHN, supra note 11, passim (discussing the need for further regulation of ART); Goodwin, supra note 16, at 1071 (describing why self-regulation is insufficient).

108 See Glennon, supra note 10, at 158-60; Suter, supra note 4, passim (citing state interests in the health of children born of ART, the sanctity of sexual reproduction, and potential life as justifications for state legislation); Carbone & Cahn, supra note 9, at 1018-29 (describing why more legislation is likely to be forthcoming); Goodwin, supra note 16, at 1071 (“On one hand, we wish to preserve individual autonomy and avoid unnecessary state interference in the intimate spheres of individuals’ lives. Yet, when vile externalities arise, including forcing children to cope with irreversible disabilities that result from the odious manipulation of reproductive specialists or the narcissistic choices of their parents, there must be a mechanism for addressing them.”).

109 See Glennon, supra note 10, at 149-56.

110 See, e.g., CAHN, supra note 11 (providing a comprehensive analysis of why and how the fertility market needs regulation); Carbone & Cahn, supra note 9, at 1016; Glennon, supra note 10, at 149-50; Goodwin, supra note 16, at 1071-74. For instance, some countries have successfully limited multiple births by limiting the permissible number of embryo transfers. See Adamson, supra note 13, at 734. One state in the U.S., Louisiana, prohibits the destruction of excess embryos based on the state's interest in potential life. LA. REV. STAT. ANN. § 9:129 (2011) (“A viable in vitro fertilized human ovum is a juridical person which shall not be intentionally destroyed by an natural or other juridical person or through the actions of any other such person.”).

111 Kindregan, Charles P. & Snyder, Steven H., Clarifying the Law of ART: The New American Bar Association Model Act Governing Assisted Reproductive Technology, 42 FAM. L.Q. 203, 203-06 (2008).Google Scholar

112 See Fertility Clinic Success Rate and Certificate Act, 42 U.S.C. §§ 263a-1 to -7 (2006).

113 CAL. HEALTH & SAFETY CODE § 125315 (West 2011).

114 LA. REV. STAT. ANN. § 9:123 (2005).

115 See Judy Peres, In-Vitro New Front in Embryo War, CHI. TRIB., July 6, 2005, at C1.

116 Manning, Paula L., Baby Needs a New Set of Rules: Using Adoption Doctrine to Regulate Embryo Donation, 5 GEO. J. GENDER & L. 677, 678 (2004).Google Scholar

117 See, e.g., Katz, Katheryn D., Snowflake Adoption and Orphan Embryos: The Legal Implications of Embryos Donation, 18 WIS. WOMEN's L.J. 179, 188-90 (2003).Google ScholarPubMed

118 CAHN, supra note 11, at 56; Carbone & Cahn, supra note 9, at 1020; Glennon, supra note 10, at 150.

119 See Adamson, supra note 13, at 733-34. Among the other arguments made by opponents of legislation imposing strict limitations on the use of fertility treatments are: “the profession is responding, the problem is improving, patients need individual treatment, guidelines are working, the net economic benefit of ART is positive, technology outdates legislation, and social advances outdate legislation.” Id. at 738. In addition, “regulation with absolute limits causes reproductive tourism, discriminates against some patients, involves politics in medicine, has unintended consequences, may be illegal, and criminalizes medicine.” Id.

120 See supra notes 89-90 and accompanying text.

121 See, e.g., Goodwin, supra note 16, at 1055-60. See also supra notes 51-52 and accompanying text.

122 Adamson, supra note 13, at 738 (“A major area of concern is the issue of multiple pregnancies that result from ART.”); Glennon, supra note 10, at 160; Robertson, John A., Decisional Authority Over Embryos and Control of IVF Technology, 28 JURIMETRICS J. 285, 285-87 (1988)Google Scholar; Stephanie Saul, The Gift of Life, and Its Price, N.Y. TIMES, Oct. 10, 2009 at A1 (“In the past few years, we have felt increasingly uncomfortable because we feel like we are sitting on the tip of the iceberg.”) (quotation marks omitted).

123 Joyce A. Martin et al., Nat’l Ctr. for Health Statistics, Births: Final Data for 2004, 55 NAT’L VITAL STATS. REP., Sept. 29, 2006, at 25, available at http://www.cdc.gov/nchs/data/nvsr/nvsr55/ nvsr55_01.pdf.

124 Saul, The Gift of Life, supra note 122; see also Elizabeth Lynch & Todd Denzen, Fertility Drugs Contribute Heavily to Multiple Births (Jan. 15, 2010), http://www.marchofdimes.com/ aboutus/49267_62811.asp.

125 According to one study, about thirty percent of all twins end up in a neonatal intensive care unit. Twins are eight times as likely to have been born at very low birth weight. There is an increased chance of death in the first few days of life, mental retardation, eye and ear impairments, and learning disabilities. Women are at much greater risk of pregnancy complications. See Glennon, supra note 10, at 161; Martin H. Johnson & Kerry Petersen, Instruments for ART Regulation: What are the Most Appropriate Mechanisms for Achieving Smart Regulation?, in REGULATING AUTONOMY: SEX, REPRODUCTION AND FAMILY, supra note 10, 169; Saul, The Gift of Life, supra note 122. The process of multiple embryo transfer has been estimated to cost the U.S. $500 million annually in treatments for multiples. See id. 126 See Carbone & Cahn, supra note 9, at 1015-16; Judith Lorber, Choice, Gift or Patriarchal Bargain? Women's Consent to In Vitro Fertilization in Male Infertility, in FEMINIST PERSPECTIVES IN MEDICAL ETHICS 169 (Helen Bequaert Holmes & Laura M. Purdy eds., 1992).

127 See Carbone & Cahn, supra note 9, at 1015-16. Moreover, some patients may freeze embryos because fear of damage or aging to their eggs. In particular, with egg donors, such freezing and storage saves considerable time, money, and logistical obstacles in locating a new donor or retrieving more eggs from a previous donor. See generally Katz, supra note 117.

128 See Katz, supra note 117, at 187 n.55 (citing Maranto, Gina, Embryo Overpopulation: Born into Controversy, Cryopreservation Again Stirs Debate as Thousands of Frozen Embryos Grow Old, 86 SCI. AM. 16, 18 (1996)Google Scholar). There are over 500,000 in the U.S. alone. See Carbone & Cahn, supra note 9, at 1023.

129 See Carbone & Cahn, supra note 9, at 1016 (“As they contemplate these options, couples may be frozen with paralysis, unable to decide what to do … .”).

130 See infra notes 384-93 and accompanying text.

131 See Goodwin, supra note 16, at 1050-51.

132 See Glennon, supra note 10, at 156-61; see also Goodwin, supra note 16, at 1054 (citing Robert M.L. Winston & Kate Hardy, Are we Ignoring Potential Dangers of In Vitro Fertilization and Related Treatments?, 4 NATURE CELL BIOLOGY S14 (Fertility Supp. 2002)).

133 See Goodwin, supra note 16, at 1054-57.

134 Ertman, Martha, Mapping the New Frontiers of Private Ordering: Afterward, 49 ARIZ. L. REV. 695, 703 (2007).Google Scholar

135 See id. at 703; see also Franke, Katherine, Longing for Loving, 76 FORDHAM L. REV. 2685, 2688-90 (2008)Google Scholar (suggesting that the lack of regulation concerning homosexual sexuality may allow gay couples to best explore optimal frameworks for their unions outside of regulation).

136 See Glennon, supra note 10, at 152.

137 See id. at 155.

138 Napoli, supra note 24, at 358.

139 See, e.g., Cohen, supra note 6, at 850-51 (“Many believe that midwife-assisted home-births are as safe as hospital births for low-risk women, yet blanket government restrictions still prevent women from choosing this option in fifteen states.”).

140 See Lifchez v. Hartigan, 735 F. Supp. 1361, 1377 (N.D. Ill. 1990) (“[W]ithin the cluster of constitutionally protected choices … must be … the right to submit to a medical procedure [to obtain information about the fetus through prenatal testing,] which can lead to a decision to abort.”). But see Whitner v. State, 492 S.E.2d 777 (S.C. 1997) (affirming conviction of women for abuse and neglect of fetus based on ingestion of cocaine during pregnancy).

141 See Ikemoto, Lisa C., The Code of Perfect Pregnancy: At the Intersection of the Ideology of Motherhood, the Practice of Defaulting to Science, and the Interventionist Mindset of Law, 53 OHIO ST. L.J. 1205, 1252-53 (1992)Google Scholar; Leavy, Daniel R., The Maternal-Fetal Conflict: The Right of a Woman to Refuse a Cesarean Section Versus the State's Interest in Saving the Life of the Fetus, 108 W. VA. L. REV. 97, 98-99 (2005)Google Scholar; Pamala Harris, Note, Compelled Medical Treatment of Pregnant Women: The Balancing of Maternal and Fetal Rights, 49 CLEV. ST. L. REV. 133, 139-40 (2001).Google Scholar

142 See, e.g., Pemberton v. Tallahassee Mem’l Reg’l Med. Ctr. Inc., 66 F. Supp. 2d 1247, 1248-49 (N.D. Fla. 1999); Cherry, April L., The Detention, Confinement, and Incarceration of Pregnant Women for the Benefit of Fetal Health, 16 COLUM. J. GENDER & L. 147, 160-62 (2007)Google Scholar; Jefferson v. Griffin Spalding City Hosp., 274 S.E.2d 457 (Ga. 1981); see also Committee Opinion No. 321: Maternal Decision Making, Ethics and the Law, ACOG COMMITTEE OPINION (Am. Coll. of Obstetricians and Gynecologists Comm. on Ethics, D.C.), Nov. 2005 [hereinafter ACOG COMMITTEE OPINION, Maternal Decision Making]; Courtney G. Joslin, Legal Regulation of Pregnancy and Childbirth, U.C. DAVIS LEGAL STUD. RESEARCH PAPER SERIES, Feb. 2010, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1558517.

143 In re A.C., 573 A.2d 1235, 1252-53 (D.C. 1990) (overruling district court's balancing of fetal interests against mother's interests and forcing a C-section); In re Baby Boy Doe, 632 N.E.2d 326, 330-35 (Ill. App. Ct. 1994).

144 Fifteen states in the U.S. prohibit direct-entry midwives and home births, although certified nurse midwives may practice in hospitals under a physician's control. See Cohen, supra note 6, at 850; Chojnacki, supra note 72, at 49-51.

145 See Law, supra note 26, at 357-59 (describing medical association guidelines that led to the rapid decline of hospitals allowing VBAC (Vaginal Birth After C-sections)).

146 See supra note 144 and accompanying text.

147 See Law, supra note 26, at 357-359.

148 There are, of course, other contexts for potentially unnecessary medical intervention during pregnancy as well. See id. at 355.

149 Brady E. Hamilton et al., Nat’l Ctr. for Health Statistics, Births: Preliminary Data for 2007, 57 NAT’L VITAL STAT. REPORTS, March 18, 2009, at 3, available at http://www.cdc.gov/nchs/data/nvsr/nvsr57/nvsr57_12.pdf.

150 Stephen Smith, C-sections leap to 1 in 3 births in Bay State, to outstrip US, BOSTON GLOBE, February 14, 2008, http://www.boston.com/news/local/articles/2008/02/14 /c_sections_leap_to_1_in_3_births_in_bay_state_to_outstrip_us. In response, the state's Secretary of Health and Human Services, Dr. Judy Ann Bigby, announced the formation of a panel to investigate the reasons for the increase and the implications for public policy worldwide. Id.

151 Id.

152 Cohen, supra note 6, at 858.

153 Orly Goldstick et al., The Circadian Rhythm of “Urgent” Operative Deliveries, 5 ISR. MED ASSOC. J. 564, (2003); see also Feldman, Elizabeth & Hurst, Marsha, Outcomes and Procedures in Low Risk Birth: A Comparison of Hospital and Birth Center Settings, 14 BIRTH 18, 18-24 (1987).CrossRefGoogle ScholarPubMed 154 See Kubasek, supra note 24, at 400; see also Law, supra note 26, at 355-56 (discussing reasons for unnecessary C-sections).

155 World Health Org., Appropriate Technology for Birth, 2 LANCET 436-37 (1985).

156 See, e.g., Suter, Sonia M., The Routinization of Prenatal Testing, 28 AM. J.L. & MED. 233, 233-70 (2002).Google ScholarPubMed

157 See ADRIENNE RICH, OF WOMAN BORN: MOTHERHOOD AS EXPERIENCE AND INSTITUTION 64 (1976) (observing that in women's experience, the fetus challenges the inside-outside dualism in western philosophy by being at once introduced from without and nascent from within, so that “the child that I carry for nine months can be defined neither as me nor as not-me”).

158 See id.

159 See Glennon, supra note 10, at 154.

160 See id.

161 See id. at 154, 161.

162 See Lisa M. Hewitt, Case Note, A (Children): Conjoined Twins and Their Medical Treatment, 3 J.L. & FAM. STUD. 207 (2001).Google Scholar

163 See Lorber, supra note 126, at 174-75.

164 In the context of abortion, the contemporary discussion over the maternal-fetal relation pulls in one of two directions: either one seeks to humanize the fetus or to humanize the pregnant woman. Compare ANN OAKLEY, THE CAPTURED WOMB: A HISTORY OF THE MEDICAL CARE OF PREGNANT WOMEN 155-86 (1984), and Kin, Patricia A., The Juridical Status of the Fetus: A Proposal for Legal Protection of the Unborn, 77 MICH. L. REV. 1647 (1979)Google Scholar, and Parness, Jeffrey A. & Pritchard, Susan K., To Be or Not to Be: Protecting the Unborn's Potentiality of Life, 51 U. CIN. L. REV. 257 (1982)Google ScholarPubMed (emphasis on fetal rights), with Johnsen, Dawn, The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy and Equal Protection, 95 YALE L.J. 599, 625 (1986)CrossRefGoogle ScholarPubMed (emphasis on pregnant women's rights). In this Article, I am trying to recognize the complexity of both interests working simultaneously in having to make medical choices for the benefit of both.

165 See Johnsen, supra note 164, at 608-09.

166 See id.

167 See, e.g., Glennon, supra note 10, at 153; Parness & Pritchard, supra note 164, at 278-79 (affirming the value of human life).

168 See Johnsen, supra note 164, at 612.

169 Cf. Glennon, supra note 10, at 153-54.

170 These procedures include hormone treatments, ultrasounds, vaginal and abdominal procedures, as well as general anesthesia. See Lorber, supra note 126, at 169.

171 See, e.g., Colb, Sherry F., To Whom Do We Refer When We Speak of Obligations to “Future Generations”? Reproductive Rights and the Intergenerational Community, 77 GEO. WASH. L. REV. 1582, 1598 (2009).Google Scholar This is particularly the case when it is male infertility that leads the woman to engage in IVF. Such a choice involves significant invasive medical procedures to the woman and she must be treated as the primary patient and explained alternative options. See Lorber, supra note 126, at 169-70.

172 See infra notes 388-93 and accompanying text.

173 See Vukadinovich, David M., Assisted Reproductive Technology: Obtaining Informed Consent for the Commercial Cryopreservation of Embryos, 21 J. LEGAL MED. 67, 73 (2000)CrossRefGoogle ScholarPubMed (discussing the possibility of a male donor, without knowledge, becoming a biological and legal father of children born after divorce or even death); see also CAHN, supra note 11, at 656-63.

174 ART, such as IVF, often involve the creation and implantation of embryos, which may or may not develop into a fetus. See generally Carbone & Cahn, supra note 9.

175 Cf. Glennon, supra note 10, at 161 (discussing fertility doctors’ limitations in only experiencing patient frustration with infertility or initial happiness upon successful pregnancy).

176 See Gatter, Ken Marcus, Protecting Patient-Doctor Discourse: Informed Consent and Deliberative Autonomy, 78 OR. L. REV. 941, 943 (1999)Google ScholarPubMed (describing a doctor's fiduciary responsibility).

177 See Gatter, supra note 57, at 558.

178 See King & Moulton, supra note 61, at 435-36 (designating beneficence as a main guiding principle of medical practice).

179 Forell, Caroline & Sortun, Anna, The Tort of Betrayal of Trust, 42 U. MICH. J.L. REFORM 557, 586 (2009).Google Scholar

180 For a discussion of balancing the imperative to protect the patient's choice and the patient's health, see infra note 365 and accompanying text.

181 See id.

182 See, e.g., Manian, supra note 17, at 254 (stating that informed consent laws regulating abortion practices actually impose the government's views of what women should do); Siegel, supra note 15, at 1757-58.

183 See Chewning, supra note 23, at 605 (explaining common statutory requirements for abortion informed consent).

184 See Manian, supra note 17, at 256-57.

185 Id.

186 See supra notes 44-46 and accompanying text.

187 Id.

188 Georgia, Arkansas, Oklahoma, and Louisiana require the following information be provided: “[b]y 20 weeks’ gestation, the unborn child has the physical structures necessary to experience pain. There is evidence that by 20 weeks’ gestation unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted to be a response to pain. Anesthesia is routinely administered to unborn children who are 20 weeks’ gestational age or older who undergo prenatal surgery.” Tobin, Harper Jean, Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws, 17 COLUM. J. GENDER & L. 111, 141 (2008)Google Scholar (quoting ARK. CODE ANN. § 20-16-1105(a)(1)(A) (2005); GA. CODE ANN. § 31-9A-4(a)(3) (2006); OKL. STAT. tit. 63, § 1- 738.10(A) (Supp. 2008); LA. REV. STAT. ANN. § 40:1299.35.6(C)(1)(a)(ii) (2001)). “An unsuccessful bill in the 109th Congress, the Unborn Child Pain Awareness Act, used almost identical language but prefaced each statement with the words, ‘There is substantial evidence that … .’” Id. (footnote omitted) (quoting the Unborn Child Pain Awareness Act of 2006, H.R. 6099, 109th Cong. (2006)).

189 See infra note 221 and accompanying text. For instance, the Alabama legislature justified its legislation requiring that women seeking abortions first receive the opportunity to see an ultrasound on the grounds that an ultrasound provides valuable information (part of the “informed consent” for the procedure) that abortion doctors are unlikely to provide: “[i]n most instances, the woman's only actual contact with the physician occurs simultaneously with the abortion procedure, with little opportunity to receive counseling concerning her decision.” Woman's Right to Know Act, ALA. CODE § 26-23A-2 (2011).

190 ALA. CODE § 26-23A-2; see also Sanger, Carol, Decisional Dignity: Teenage Abortion, Bypass Hearings, and the Misuse of Law, 18 COLUM. J. GENDER & L. 409, 414-18 (2009)Google Scholar (noting that legislators assume that women do not fully consider or reflect upon abortion decisions).

191 Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (approving of Congressional findings about the harms of abortion to the sanctity of human life in society: “[i]mplicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life”).

192 Id. at 157-59.

193 See supra notes 81-96 and accompanying text.

194 See supra notes 92-96 and accompanying text.

195 See Hasday, Jill Elaine, Protecting Women from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. REV. 1464, 1466 (2009)Google Scholar (describing how beginning with Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court has insisted “that both women seeking abortions and people opposed to abortion are better off if the law restricts or prohibits abortion. This argument contends that antiabortion laws protect women from the psychological harm that abortion would inflict upon them and the regret they would and should experience after abortion”); Siegel, supra note 15, at 1716-26.

196 See Tobin, supra note 188, at 143-51 (describing state legislation mandating information be provided about fetal pain in abortion).

197 Id.

198 Id.

199 See 550 U.S. 124, 158-60 (2007). See generally, Siegel, supra note 15.

200 Gonzales, 550 U.S. at 159 (“In 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 entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue … . The State has an interest in ensuring so grave a choice is well informed.”).

201 Id. (describing the abortion decision as “a difficult and painful moral decision … [f]raught with emotional consequence …”). Justice Kennedy's concern for informed consent coupled with his ban of the partial-birth procedure because of the difficulty of ensuring informed consent is particularly troubling: “[c]learly, a statute cannot promote informed consent by eliminating the possibility of consent.” See also Suter, supra note 4, at 1579.

202 Gonzales, 550 U.S. at 159; see also Suter, supra note 4, at 1577.

203 Gonzales, 550 U.S. at 158-59.

204 See Siegel, supra note 15, at 1701. Conflicting results on the connection between abortion and mental health have been recently released. The American Psychological Association found “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.” BRENDA MAJOR ET AL., AM. PSYCHOLOGICAL ASSOC., REPORT OF THE APA TASK FORCE ON MENTAL HEALTH AND ABORTION 4 (2008), available at http://www.apa.org/pi/women/programs/abortion/mental-health.pdf. But see Ferguson, David M. et al., Abortion and Mental Health Disorders: Evidence from a 30 Year Longitudinal Study, 193 BRIT. J. PSYCHIATRY 444, 449 (2008)CrossRefGoogle Scholar (documenting a thirty percent increase in mental disorders for women who had an abortion).

205 See, e.g., Cleveland Bd. of Educ. v. Lafleur, 414 U.S. 632, 636-51 (1974) (stereotypes about women's infirmity during pregnancy cannot be used to justify legally mandated maternity leaves); Cook, Rebecca J. et al., Unethical Female Stereotyping in Reproductive Health, 109 INT’L J. GYNECOLOGY & OBSTETRICS 255, 256-57 (2010)Google ScholarPubMed (describing the ways in which women are stereotyped as incapable moral decision-makers by doctors in the context of reproductive choices).

206 See, e.g., NANCY CHODROW, THE REPRODUCTION OF MOTHERING: PSYCHOANALYSIS AND THE SOCIOLOGY OF GENDER 209 (1978) (marking mothering capacities as part of feminine personalities); RICH, supra note 157, at 42 (“Institutionalized motherhood demands of women maternal ‘instinct’ rather than intelligence, selflessness rather than self-realization, relation to others rather than the creation of the self.”).

207 See Siegel, supra note 15, at 1755-56.

208 See id. at 1757.

209 See supra Part II.B.1.

210 See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 919 (1992) (Stevens, J., dissenting) (“No person undertakes such decision lightly – and States may not presume that a woman has failed to reflect adequately merely because her conclusion differs from the State's perspective.”); Appleton, Susan Frelich, Doctors, Patients, and the Constitution: A Theoretical Analysis of the Physician's Role in “Private” Reproductive Decisions, 63 WASH. U. L.Q. 183, 233 (1985)Google ScholarPubMed; Manian, supra note 17, at 251-52; McClain, Linda C., The Poverty of Privacy?, 3 COLUM. J. GENDER & L. 119, 143-44 (1992).Google Scholar Appleton later acknowledges that broader informed consent conversations intended to support reproductive decision-making may be beneficial: “[t]o the extent that access to information-- including the opportunity to talk with other patients facing similar choices (both those who have selected a given treatment path and those who have selected alternatives)--enhances sound medical decision-making, the state could facilitate access to such information.” Appleton, Susan Frelich, Unraveling the “Seamless Garment”: Loose Threads in Pro-Life Progressivism, 2 U. ST. THOMAS L.J. 294, 306 (2005)Google Scholar. She cautions, however, “[o]f course, the information must be ‘neutral’ and accurate, and measures designed to facilitate access should not single out abortion patients, but should reach all those facing important health care decisions.” Id. at 306-07. But see Kapp, supra note 18, at 620-21 (pointing to the myriad of health procedures in which states have legislated mandatory informed consent statutes compelling the provision of certain information).

211 See Appleton, Doctors, Patients, and the Constitution, supra note 210, at 233; McClain, supra note 210, at 144. See also infra Part IV.A., for a fuller theoretical discussion of the potential discriminatory impact of particularizing women's reproductive choices.

212 See infra Part IV.A.

213 See, e.g., Dworkin, Ronald, Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. CHI. L. REV. 381, 408 (1992)CrossRefGoogle ScholarPubMed (maintaining that states can aim at morally reflective and responsible decision-making). For the constitutional requirement that information provided be truthful and not misleading, see supra notes 83-91 and accompanying text.

214 See, e.g., discussion of hysterectomy and mastectomy legislation infra notes 291-96 and accompanying text.

215 See Kapp, supra note 18, at 620-22 (pointing to the myriad of medical treatment contexts in which state-defined information must be provided, including surgical sterilization, electroconvulsive therapy, and administration of psychotropic drugs).

216 Cf. Note, Rethinking (M)otherhood: Feminist Theory and State Regulation of Pregnancy, 103 HARV. L. REV. 1325, 1334-38 (1990)Google Scholar (describing the effect of the unique interconnectedness of mother and fetus as having unique legal implications).

217 See Kapp, supra note 18, at 622; see also Dresser, Rebecca, From Double Standard to Double Bind: Informed Choice in Abortion Law, 76 GEO. WASH. L. REV. 1599, 1615-17 (2008)Google Scholar (discussing the evolution of informed consent in the abortion context from conformity with the general common law doctrine to emphasizing the procedure's risks and consequences).

218 At least one state, Minnesota, mandates informing women about the adoption alternative to abortion and includes language that “it is rarely an easy decision” to give a child up for adoption within its Women's Right to Know Act. MINN. DIV. OF CMTY. & FAMILY HEALTH, IF YOU ARE PREGNANT: INFORMATION ON FETAL DEVELOPMENT, ABORTION AND ALTERNATIVES 24 (2009). This brief indication of complexity comes after pages of information intended to dissuade women from abortion. Other states’ Women's Right to Know Acts, such as Texas and Florida’s, mandate the provision of information regarding the risks of child-birth, including post-partum depression, and mandate informing women of the option of adoption without getting into any complexity at all or specifically discussing the emotional complex of having an unwanted child. FLA. STAT. ANN. § 390.011(3)(a)(2) (West 2007); Woman's Right to Know, TEX. DEP't OF STATE HEALTH SERVS., http://www.dshs.state.tx.us/wrtk/default.shtm (last updated Sept. 13, 2011); see also Woman's Right to Know Act, ALA. CODE § 26-23A-2 (2011) (also requiring that a woman view an ultrasound).

219 In Roe v. Wade, these very interests—psychological harm, mental health concerns, and the possible stigma that an unwed mother might experience—were considered in determining that the right to abortion needed to be preserved. 410 U.S. 113, 153 (1973).

220 See SHERWIN, supra note 31, at 114-15. For instance, in the abortion context, the federal “gag rule” forbidding Title X-funded family planning programs from providing information about abortion is a troubling contrast to informed consent laws pointing to the gestational age of the fetus. Rust v. Sullivan, 500 U.S. 173 (1991) (upholding the constitutionality of the “gag rule”); Kapp, supra note 18, at 622.

221 Although it is beyond the scope of this Article to determine what information is “truthful and non-misleading” in the context of abortion where the state has a history of undermining women's autonomy, caution must be used in determining what information can be mandated by determining what is truthful and not misleading under the Casey doctrine. Mandating information to be provided by the state in the context of abortion is particularly controversial because under the rubric of “informed consent,” scholars have argued that a clear agenda is being advanced, which is more than merely “suggestive” in that it conveys certain interests in protecting the fetus, but is actually aggressive, inaccurate, and misleading. See Blumenthal, Jeremy A., Abortion, Persuasion, and Emotion: Implications of Social Science Research on Emotion for Reading Casey, 83 WASH. L. REV. 1 (2008)Google Scholar (discussing how informed consent obligations designed to elicit emotion may not comply with the truthful and non-misleading guidelines of Casey). See generally notes 38-50 and accompanying text (discussing the roots of the informed consent doctrine and its development into a tort sounding in negligence).

222 While truthful and suggestive information that is not misleading does not seem problematic in theory, it is problematic if it is given in isolation from other interests that are ignored. Cf. West, supra note 37 (applauding Casey's communitarian values but expressing skepticism about any kind of impediment to abortion in light of the hostile environment society that provides to mothers).

223 See Corbin, Caroline Mala, The First Amendment Right Against Compelled Listening, 89 B.U. L. REV. 939, 982-83 (2009)Google Scholar; Pile, supra note 23, at 243 (describing the violation of the physician's right to free speech by informed consent laws).

224 Corbin, supra note 223, at 982.

225 The author raises this possible objection, see id. at 984, but dismisses it by saying that despite such governmental influence, there must be a limit to the extent of influence as we remain agents capable of self-evaluation and that some influences can be illegitimate.

226 Like any informed consent discussion, the receipt of information can be waived. The ability of the patient to waive the counseling would be applicable, similar to such waivers of traditional informed consent. See Douglas Andrew Grimm, Informed Consent for All! No Exceptions, 37 N.M. L. REV. 39, 42, 62-77; Rich, Ben A., Prognostics in Clinical Medicine: Prophecy or Professional Responsibility?, 23 J. LEGAL MED. 297, 329-30 (2002)CrossRefGoogle ScholarPubMed (“Once accurate information is conveyed [about a patient's medical condition], patients may waive the right to receive information regarding their care, waive the right to make decisions regarding their care, or both.”). Yet, in accepting any such waiver, doctors must be cautious of the power of their suggestions and that a call for help in making a decision is not equivalent of a waiver. Grimm, supra, at 77. Furthermore, when the state insists certain information be provided, not providing a fuller discussion transmits bias and thus caution must be wielded by doctors when waiver is requested. Still, the goals of the informed consent consultations I recommend are to support patient decision making, not to coerce.

227 Some mandatory information is directed by the state in the context of ART and providing more such information in the future is likely. For instance, the ABA model act governing ART recommends that mandatory information be provided regarding reproductive alternatives. Kindregan & Snyder, supra note 111, at 212 (“The Model Act creates precise standards governing informed consent; this includes the need for written notice of the potential risks, consequences, and benefits of assisted reproduction; the advisability of seeking legal counsel; and descriptions of other available choices, such as adoption and natural cycling.”).

228 See supra notes 46-48 and accompanying text.

229 See Cohen, , supra note 6, at 858; Developments in the Law—Medical Technology and the Law, 103 HARV. L. REV. 1584, 1608-09 (1990)Google Scholar (asserting medical professionals’ judgments are vulnerable to distortions based on interventionist training); Bloche, Greg, Corporate Takeover of Teaching Hospitals, 65 S. CAL. L. REV. 1035, 1115 (1992)Google Scholar (discussing pro-technology bias of doctors in the context of reimbursement bias).

230 See SHERWIN, supra note 31, at 118-19.

231 Id.

232 Peters, Kathleen et al., Failures of Reproduction: Problematising “Success” in Assisted Reproductive Technology, 14 NURSING INQUIRY 125, 128-29 (2007)CrossRefGoogle Scholar (describing the distinctions between medical versions of success and patient versions of success in reproductive technologies).

233 See Frank, Claudia, ‘I Want a Child!’ Concerning Problems of Informed Consent in Fertility Treatment, 21 PSYCHOANALYTIC PSYCHOTHERAPY 150, 166 (2007)CrossRefGoogle Scholar; Glennon, Theresa, Choosing One: Resolving the Epidemic of Multiples in Assisted Reproduction, 55 VILL. L. REV. 147, 183-84 (2010)Google Scholar (discussing how doctors influence patient decision making toward multiple embryo transfers).

234 See supra note 18 and accompanying text. Glennon, supra note 233, at 181 (“Thus, when patients make decisions about the number of embryos to implant at one time, they do so in consultation with a physician whose measure of success, both financial and professional, is based on pregnancy rates and birth rates. These physicians, however, do not have the experience with the difficulties of a multiple pregnancy, nor will they care for the patient or their children during pregnancy, delivery, or childhood.”).

235 See, e.g., Thachuk, supra note 18, at 42; cf. Lorber, supra note 126, at 174.

236 See, e.g., Frank, supra note 233, at 166 (citing a number of studies indicating that placing rational limits on reproductive technology are lost in an atmosphere of treating infertility and doing all that is possible in assisting reproduction); Lorber, supra note 126, at 174 (citing ELLIOT G. MISHLER, THE DISCOURSE OF MEDICINE: DIALECTICS OF MEDICAL INTERVIEWS 125 (1984) (the propensity toward medicalization and technological intervention so imbues interactions between patients and doctors that patients’ concerns are frequently ignored)); Peters et al., supra note 232, at 128.

237 See Glennon, supra note 233, at 184, 185 (describing effects on doctors’ perceptions from couples deep desires to get pregnant).

238 See Glennon, supra note 10, at 152-54.

239 See Carbone & Cahn, supra note 9, at 1016-17, 1023-25; cf. Glennon, supra note 10, at 153.

240 See Vukadinovich, supra note 173, at 67-68.

241 See id. at 68. For a discussion of litigation over frozen embryos, see infra notes 384-83 and accompanying text.

242 Crossley, Mary, Infected Judgment: Legal Responses to Physician Bias, 48 VILL. L. REV. 195, 201-05 (2003).Google ScholarPubMed

243 See, e.g., Peters et al., supra note 232, at 127-29.

244 See id. at 127; Goodwin, supra note 16, at 1055-56.

245 See Goodwin, supra note 16, at 1057.

246 See supra notes 233-240; see also Glennon, supra note 233, at 184 (“Due to the frustration that patients have felt throughout the process of infertility, the fear that they will never get pregnant, and the great expense associated with each cycle of treatment, fertility doctors are likely to describe pregnancy rates by each cycle rather than describing IVF as a process involving both fresh and frozen cycles.”).

247 See Frank, supra note 233, at 153-55 (discussing internal struggle that women undergoing fertility treatments may undergo).

248 See Harris, supra note 141, at 134.

249 Id.

250 See Chojnacki, supra note 72, at 58; Harris, supra note 141, at 140-43; Robertson, Horace B., Jr., Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life, 1978 DUKE L.J. 1401, 1422-31 (1978)Google ScholarPubMed (describing the wide acceptability of pre-natal and even pre-conception liability for third-party actions).

251 See Law, supra note 26, at 362.

252 ACOG COMMITTEE OPINION, Maternal Decision Making, supra note 142, at 5-6.

253 See, e.g., Kubasek, supra note 24, at 405; Robertson, supra note 102, at 455.

254 ACOG COMMITTEE OPINION, Maternal Decision Making, supra note 142, at 3.

255 Id.

256 Am. Coll. of Obstetricians and Gynecologists Comm. on Practice Bulletins, ACOG Practice Bulletin No. 106: Intrapartum Fetal Heart Rate Monitoring: Nomenclature, Interpretation, and General Management Principles, 114 OBSTETRICS & GYNECOLOGY 192, 192 (2009)CrossRefGoogle Scholar [hereinafter ACOG Practice Bulletin].

257 See Law, supra note 26, at 354.

258 See id. at 350-51.

259 See id. at 362.

260 See id. at 370.

261 Id. at 347.

262 See Cohen, supra note 6, at 858. (“[S]ince medical knowledge is not absolute and incorporates important value judgments, perhaps those value judgments should be the protected right of the individual as well.”); see also infra notes 277-86 and accompanying text.

263 See Cohen, supra note 6, at 861; Kubasek, supra note 24, at 411-15.

264 Ehrenreich, Nancy, The Colonization of the Womb, 43 DUKE L.J. 492, 538 (1993)CrossRefGoogle ScholarPubMed; see Beckett, Katherine & Hoffman, Bruce, Challenging Medicine: Law, Resistance, and the Cultural Politics of Childbirth, 39 LAW & SOC’Y REV. 125, 135 (2005).Google Scholar

265 See Ehrenreich, supra note 264, at 538.

266 In re A.C., 573 A.2d 1235 (D.C. Cir. 1990) (suggesting by emphasizing the fact that the woman did not want an abortion, that when she made a decision regarding whether or not to undergo a C-section, she was making a valid choice); Goldberg, Susan, Medical Choices During Pregnancy: Whose Decision Is It Anyway?, 41 RUTGERS L. REV. 591, 614-18 (1989).Google ScholarPubMed See also infra notes 370-71 for a discussion of irrational decision making and how dialogue can contend with apparent irrationality.

267 In re A.C., 573 A.2d at 1238.

268 See Annas, George J., She's Going to Die: The Case of Angela C., 18 HASTINGS CENTER REP. 23 (1988).CrossRefGoogle ScholarPubMed See generally Gallagher, Janet, Prenatal Invasions & Interventions: What's Wrong with Fetal Rights, 9 HARV. WOMEN's L.J. 9, 9-14 (1987)Google Scholar (exploring the origins of fetal rights and arguing that the “[i]ndividual and societal costs of placing the power of decision making anywhere but with the pregnant woman are too great”).

269 In re A.C., 573 A.2d at 1238; Annas, supra note 268, at 23.

270 In re A.C., 573 A.2d at 1239-41.

271 Id.

272 Id. at 1238-39.

273 Id. at 1240-41.

274 Id.; Annas, supra note 268, at 23-24.

275 In re A.C., 573 A.2d. at 1241.

276 Id. at 1237.

277 ROSALYN DIPROSE, THE BODIES OF WOMEN: ETHICS EMBODIMENT AND SEXUAL DIFFERENCES 111-18 (1994); Cohen, supra note 6, at 855 (“[V]iews about birth may express deeply held beliefs about nature and religion, and are often the product of parental, political, religious, and feminist choices.”).

278 See, e.g., Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (Can.); R. v. Morgentaler, [1988] 1 S.C.R. 30, 164 (Can.) (A woman's decision about whether to continue her pregnancy “is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well. Her response to it will be the response of the whole person.”); LESLEY DOYAL, WHAT MAKES WOMEN SICK: GENDER AND THE POLITICAL ECONOMY OF HEALTH 145-46 (1995) (describing identity concerns of childless women); Becker, Mary, Care and Feminists, 17 WIS. WOMEN's L.J. 57, 68 (2002)Google Scholar (“[I]f you decide not to be a mother, some people will regard you as not a ‘real’ woman. However, if you do become a mother, you are likely to be seen as essentially a mother.”); Frank, supra note 233, at 153 (“Due to the treatment possibilities of reproductive medicine, ‘unwanted childlessness’ is not any longer simply a matter of fate, but leads to a compulsory decision either for or against reproductive medical interventions.”); Law, supra note 26, at 366 (“[P]ersonal values, as opposed to technical medical considerations, may have greater weight in childbirth decisions than in other medical procedures.”).

279 See Siegel, supra note 15, at 1698 (discussing the need for deliberation into a women's complex interests and feelings about the decision in order to ensure a fully informed choice to abort, as opposed to legislation or bans permitted by the Supreme Court); see also West, supra note 37.

280 See, e.g., Frank, supra note 233, at 155.

281 See, e.g., DOYAL, supra note 278, at 146; Becker, supra note 278, at 68; Franke, Katherine M., Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 COLUM. L. REV. 181, 195-96 (2001).CrossRefGoogle Scholar

282 Frank, supra note 233, at 153; see Peters et al., supra note 232, at 129

283 Frank, supra note 233, at 153.

284 See, e.g., Law, supra note 26, at 366-67.

285 See, e.g., Khiara M. Bridges, Pregnancy, Medicaid, State Regulation, and the Production of Unruly Bodies, 3 NW. J.L. & SOC. POL’Y 62, 99 n.83 (2008); Cohen, supra note 6, at 855-56 (describing birth as a form of self-definition).

286 See supra notes 6-9 and accompanying text.

287 See supra notes 57-63; infra notes 355-57 and accompanying text.

288 See supra Part II.A., discussing the limited nature of the informed consent inquiry. See also Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure, 159 U. PA. L. REV. 647, 670 (referring to how informed consent lacks discussion of value and identity interests).

289 See supra Part II.B.2.

290 See Note, Rethinking (M)otherhood, supra note 216, at 1334 (describing various and developing stereotypes of women in the medical profession).

291 See BARRON H. LERNER, THE BREAST CANCER WARS 194 (2001) (saying that there existed “more than one feminism” and discussing how breast cancer exemplified the varying values among women).

292 See Kubasek, supra note 24, at 383 (citing a 1993 Senate hearing on hysterectomies that indicates that between 24-30% of hysterectomies are “unnecessary”); see also Unnecessary Hysterectomies, The Second Most Common Major Surgery in the United States: Hearing Before the Subcomm. on Aging of the Comm. on Labor and Human Res., 103d Cong. (1993); Nayfield, Susan G. et al., Statutory Requirements for Disclosure of Breast Cancer Treatment Alternatives, 86 J. NAT’L CANCER INST. 1202 (1994)CrossRefGoogle ScholarPubMed (describing the process that led to eighteen states passing informed consent statutes for breast cancer treatment).

293 Kubasek, supra note 24, at 383 n.37.

294 N.Y. PUB. HEALTH LAW § 2495 (McKinney 1993).

295 See Napoli, supra note 24, at 351-52.

296 Rachael, Andersen-Watts, The Failure of Breast Cancer Informed Consent Statutes, 14 MICH. J. GENDER & L. 201, 206 (1996).Google Scholar

297 Id. at 209 (“Instead, these laws gummed up the works even further by giving cookie cutter, often lackluster medical advice to women who wanted, above all, to be listened to and respected as individuals.”). See generally Ben-Shahar & Schneider, supra note 288 (discussing the failure of mandated disclosures to promote autonomy in the context of informed consent as well as other regulatory contexts).

298 Id at 204-05, 215-16; Napoli, supra note 24, at 352.

299 Andersen-Watts, supra note 296, at 214.

300 Napoli, supra note 24, at 352.

301 Id.

302 Id.

303 Compare Andersen-Watts, supra note 296, at 221, with Kubasek, supra note 24, at 421-22, and Napoli, supra note 24, at 351-52.

304 Cf. Redford v. United States, No. 89-2324, 1992 WL 84898, at *13 (D.D.C. April 10, 1992) (finding successful hysterectomy too severe a treatment because she was not adequately informed of the risks, and the minimal benefit of curing her pelvic pain did not outweigh the loss of being able to conceive).

305 See DAVE KING, THE TRANSVESTITE AND THE TRANSSEXUAL 72 (1993). Admittedly, such consultations are more focused on mental health than support for autonomous choices, and this focus may problematically bleed into the context of reproductive choice. In both contexts, consultations should aim to support patients in making good choices not judge their mental stability. See infra notes 372-77 and accompanying text.

306 See infra notes 332-36 and accompanying text; see also Latham, Melanie, The Shape of Things to Come: Feminism, Regulation and Cosmetic Surgery, 16 MED. L. REV. 437, 449-50 (2008)CrossRefGoogle ScholarPubMed (arguing for special consideration of informed consent in the context of cosmetic surgery).

307 SIMONE DE BEAUVOIR, THE SECOND SEX 72-73 (H.M. Parshley trans. & ed., 1974); Dresser, supra note 217, at 1619-20 (noting that pregnancy's uniqueness is used to deny her autonomy— particularly in Gonzales v. Carhart, 550 U.S. 124 (2007)); Erickson, Nancy, Women and the Supreme Court: Anatomy is Destiny, 41 BROOK. L. REV. 209, 230 (1974)Google Scholar; Williams, Wendy W., Equality's Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N.Y.U. REV. L. & SOC. CHANGE 325 (1985).Google Scholar

308 See, e.g., DE BEAUVOIR, supra note 307, at 72-73 (when men and women are distinguished, women are rendered “other,” and thus subordinate, not full members of the human race); Wittig, Monique, The Straight Mind, 1 FEMINIST ISSUES 103, 108 (1980)CrossRefGoogle Scholar (difference leads to domination); Law, supra note 26, at 364-66 (describing a history of undermining women's reproductive choices); Suk, supra note 26 (discussing how focus on trauma in women's sexual choices has led to undermining women's choices in the abortion context).

309 See supra notes 199-204 and accompanying text.

310 See Abrams, Kathryn, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95 COLUM. L. REV. 304, 306 (1995)CrossRefGoogle Scholar; Littleton, Christine, Reconstructing Sexual Equality, 75 CAL. L. REV. 1279, 1316 (1987)CrossRefGoogle Scholar (arguing that female values and choices are regularly discredited in a phallocentric society); Williams, Joan, Gender Wars: Selfless Women in the Republic of Choice, 66 N.Y.U. L. REV. 1559, 1561 (1991)Google ScholarPubMed (arguing that in the work-family context a woman's selfishness is condemned); Kathryn Abrams, Cross-Dressing in the Master's Clothes, 109 YALE L.J. 745, 770 n.116 (2000) (reviewing JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT (2000)); Abrams, Kathryn, Songs of Innocence and Experience, 103 YALE L.J. 1533, 1553-54 (1994)CrossRefGoogle Scholar (reviewing KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR AND FEMINISM ON CAMPUS (1993)) (explaining that choice always operates within a spectrum of constraint and agency).

311 See JOHN STUART MILL, THE SUBJECTION OF WOMEN 22 (Edward Alexander ed., Transaction Publishers 2001) (1869); Lynn, Barry, “Civil Rights” Ordinances and the Attorney General's Commission: New Developments in Pornography Regulation, 21 HARV. C.R.-C.L. L. REV. 27, 125 (1986)Google Scholar; Alan Wertheimer, Consent and Sexual Relations, in THE PHILOSOPHY OF SEX (2002).

312 See supra note 311; see also Ginsburg, Ruth Bader, Gender and the Constitution, 44 U. CIN. L. REV. 1 (1975); Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 CALIF. L. REV. 341, 344 (1949).Google Scholar

313 See supra note 311.

314 Id.

315 See supra notes 23, 210-12 and accompanying text.

316 See id.

317 Catriona Mackenzie & Natalie Stoljar, Introduction: Autonomy Reconfigured, in RELATIONAL AUTONOMY 3-31 (Catriona Mackenzie & Natalie Stoljar eds., 2000); Nedelsky, Jennifer, Reconceiving Autonomy: Sources, Thoughts and Possibilities, 1 YALE J.L. & FEMINISM 7, 14 (1989).Google Scholar

318 See, e.g., Catharine A. MacKinnon, Sex Equality: Sexuality, in TOWARD A FEMINIST THEORY OF THE STATE, supra note 318, at 127-54 (1989).

319 See, e.g., GRACE CLEMENT, CARE, AUTONOMY AND JUSTICE 21-22 (1996).

320 See Siegel, supra note 15, at 1792; see also Madeira, supra note 26 (pointing to instances in which scholars undermine women's choices in the fertility context); Suk, supra note 26 (arguing that concern about women's trauma undermines women's autonomy in the abortion context); Waldman, supra note 26, at 923-24; Rothman, supra note 26, at 29.

321 Treating pregnancy different than other medical conditions taps into the sameness/difference debate with regard to biological difference. See California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 285-86 (1987); Geduldig v. Aiello, 417 U.S. 484, 494-95 (1974); Krieger, Linda J. & Cooney, Patricia N., The Miller-Wohl Controversy: Equal Treatment, Positive Action and the Meaning of Women's Equality, 13 GOLDEN GATE U. L. REV. 513, 533-39 (1983).Google Scholar In particular for biological difference, but for other differences as well, it is argued that not recognizing gender difference may result in significant discrimination. See, e.g., Kay, Herma Hill, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. REV. 1, 77-89 (1987)Google Scholar; Laufer-Ukeles, Pamela, Selective Recognition of Gender Difference in the Law: Revaluing the Caretaker Role, 31 HARV. J.L. & GENDER 1, 36-47 (2008)Google Scholar (discussing selective recognition of gender difference to promote important societal values); Littleton, supra note 310, at 1295-1300, 1304-08, 1323-33; Catherine A. MacKinnon, Difference and Dominance, in TOWARD A FEMINIST THEORY OF THE STATE, supra note 318, at 221. Pregnancy does not have to be treated “the same as” other medical conditions since it is different than other conditions, see ARISTOTLE, NICOMACHEAN ETHICS 112-14 (J. L. Ackrill & J. O. Urmson eds., David Ross trans., Oxford Univ. Press 1980) (c. 384 B.C.E.), although it must not be the basis of discrimination. Rather, recognizing the uniqueness of pregnancy should be used to afford women more support in ensuring their equality and autonomy. See Laufer-Ukeles, supra, at 36-47 (discussing the importance of gestation in defining motherhood); Waldman, Ellen & Herald, Marybeth, Eyes Wide Shut: Erasing Women's Experiences From the Clinic to the Courtroom, 28 HARV. J.L. & GENDER 285, 310-24 (2005)Google Scholar (discussing the significance of biological difference in the context of ART).

322 CAHN, supra note 11, at 4-5.

323 Id.

324 Id.

325 Id.

326 See Nedelsky, supra note 317, at 8.

327 See, e.g., CLEMENT, supra note 319; Glennon, supra note 10; Nedelsky, supra note 317; Sherwin, supra note 64.

328 See CLEMENT, supra note 319, at 42-44; Glennon, supra note 10, at 151-52; Nedelsky, supra note 317, at 12 (“If we ask ourselves what actually enables people to be autonomous, the answer is not isolation, but relationships – with parents, teachers, friends, loved ones – that provide the support and guidance necessary for the development and experience of autonomy.”); Schneider, Carl E., After Autonomy, 41 WAKE FOREST L. REV. 411, 413 (2006)Google Scholar (“The second criticism contends that the autonomy principle, while estimable and essential, promotes deleterious attitudes, perhaps principally by underwriting a corrosive individualism that alienates people from their friends and physicians.”).

329 See SHERWIN, supra note 31, at 109; Rothman, Barbara Katz, When a Pregnant Woman Endangers Her Fetus, 16 HASTINGS CENTER REP. 24, 25 (1986)Google Scholar (referring to fetus and woman as a “social unit”).

330 Sherwin, supra note 64, at 35; see CLEMENT, supra note 319, at 22.

331 See Sherwin, supra note 64, at 43.

332 See Tom L. Beauchamp, Autonomy and Consent, in THE ETHICS OF CONSENT: THEORY AND PRACTICE (Franklin G. Miller & Alan Wertheimer eds., 2010) (“[A]utonomous choice and voluntariness are central to the notion of consent.”).

333 Id. at 69 (stating that one condition of voluntariness is that a “person be free of controls exerted either by external sources or by internal states that rob the person of self-directedness”).

334 Id. at 70-71.

335 See Sherwin, supra note 64, at 35.

336 Id. (“Relational selves are inherently social beings that are significantly shaped and modified within a web of interconnected (and sometimes conflicting) relationships.”).

337 Nedelsky, supra note 317, at 11.

338 See ACOG COMMITTEE OPINION, Maternal Decision Making, supra note 142, at 3 (“Although frameworks that treat the woman and fetus as separable and independent are meant to simplify and clarify complex issues that arise in obstetrics, many writers have noted that such frameworks tend to distort rather than illuminate, ethical and policy debates.”).

339 Id.

340 Id.

341 Id. at 4-5.

342 See Robin West, Sex, Law & Consent, in THE ETHICS OF CONSENT: THEORY AND PRACTICE, supra note 332, at 221.

343 Id. at 224 (“More specifically, I will argue that consensual sex, when it is unwanted and unwelcome, often carries harms to personhood, autonomy, integrity and identity of the person who consents to it – and that these harms are unreckoned by law and more or less unnoticed by the rest of us.”).

344 Id. (“Consent works relatively well, I will argue, as the demarcation of noncriminal from criminal sex … .”).

345 Cf. Grimm, supra note 226, at 70-72 (discussing the exception to the need for informed consent in emergency medical situations where obtaining consent is not practical).

346 See West, supra note 342, at 228-30.

347 See id. at 227.

348 See id. at 233-38.

349 See id. at 240-43.

350 Id. at 238.

351 See Sanger, supra note 190, at 414-18 (discussing how informed consent legislation impairs the decisional dignity of women in the abortion context).

352 See Koch, Lene, IVF: An Irrational Choice?, 3 ISSUES IN REPRODUCTIVE AND GENETIC ENGINEERING 235, 236 (1990)Google Scholar (“There is no doubt that IVF is a powerful transformer of women's reproductive consciousness and an irresistible technology that few women can refuse.”).

353 See id. at 235 (“One of the most difficult problems that has confronted feminist critics of in vitro fertilization (IVF) and the other new reproductive technologies, is the great enthusiasm for IVF among involuntarily childless women.”); Derek Morgan, Frameworks of Analysis for Feminism's Accounts of Reproductive Technology, in FEMINIST PERSPECTIVES ON HEALTH CARE LAW 189, 193 (Sally Sheldon & Michael Thomson eds.,1998); Boos, Karene M. & Boos, Eric J., At the Intersection of Law and Morality: A Descriptive Sociology of the Effectiveness of Informed Consent Law, 5 J.L. SOC’Y 457, 464 (2004)Google Scholar; Frank, supra note 233, at 152, 166 (citing Hans Lauter, Die Bedeutung der Einwilligung für die Legitimation ärzlichen Handelns aus medizinsch-psychiatrischer Sicht, in ETHIK DER MEDIZIN 68, 71 (1996)) (“Only occasionally it is pointed out, that human motivations, decisions and actions are usually not absolutely autonomous, but are dependent on the opinion of other people and therefore also susceptible to medical advice.”).

354 Cf. Beauchamp, supra note 332, at 72 (discussing constrained choices in which the perceived lack of alternatives can compromise autonomy); Frank, supra note 233, at 155 (“[E]ven though IVFtherapy fits in with her conscious wish, it does not take serious the clear signs that there is obviously no ‘informed consent’ in best or fullest sense.”).

355 Some legislation has begun to demand at the least that doctors give patients an opportunity to ask questions and that the doctor answer such questions. E.g., IOWA CODE ANN. § 147.137(2) (2011) (requiring the doctor to answer all questions about the procedure); 25 TEX. ADMIN. CODE § 601.4 (2011) (requiring patient to be given an opportunity to ask questions and to have the informed consent form orally explained). Simply giving patients an opportunity to ask questions, however, does not capture the dialogue that I am describing in which the doctor raises issues and asks questions of the patient who then responds and can ask questions of the doctor. Still, it is a move in the right direction.

356 See Kindregan & Snyder, supra note 111, at 212.

357 See, e.g., Boos & Boos, supra note 353, at 471 (“The key to achieving the full symbolic function of the informed consent law lies in facilitating a genuine human relationship. This is realized in the attendant level of dialogue and shared decision making in a trust relationship between the physician and the patient.”).

358 I borrow the term “welcome” from Robin West's discussion of non-consensual but voluntary rape. See supra Part IV.B.2. For sources concerning the importance of dialogue for promoting the capacity for autonomy, see Alasdair Maclean, AUTONOMY, INFORMED CONSENT AND MEDICAL LAW: A RELATIONAL CHALLENGE (2009) (discussing the need for a more engaged and discursive informed consent process generally in the medical realm); Ball, Carlos, Looking for Theory in All The Right Places: Feminist and Communitarian Elements of Disability Discrimination Law, 66 OHIO ST. L.J. 105, 149 (2005)Google Scholar (“From a communitarian perspective, equality, as well as autonomy, is best promoted by purposefully encouraging interaction and dialogue with the hope of allowing individuals to work together for the attainment of shared goals.”); Latham, supra note 306, at 449 (“The type of autonomy I want to promote as a principle of regulation then is one that entails fully informed consent; constructive dialogue and counseling that build self-trust and recognize structural oppression; professional self-awareness and ideally an institutional commitment to work against damaging social and cultural pressures.”); Timothy J. Paterick, et al., Medical Informed Consent: General Considerations for Physicians, 83(3) MAYO CLINIC PROCEEDINGS 313, 313-19 (2008) (emphasizing the need for dialogue in the informed consent process).

359 Committee Opinion No. 439: Informed Consent, ACOG COMMITTEE OPINION (Am. Coll. of Obstetricians and Gynecologists Comm. on Ethics, D.C.), Aug. 2009, at 1 [hereinafter ACOG COMMITTEE OPINION, Informed Consent] (“Communication is necessary if informed consent is to be realized, and physicians can and should help to find ways to facilitate communication … . Informed consent should be looked on as a process rather than a signature on a form.”).

394 See Vukadinovich, supra note 173, at 68-76 (setting out specific guidelines for the topics such consultations should cover).

395 See Kubasek, supra note 24, at 390-91 (discussing a study in Los Angeles documenting high rates of tubal ligations—a form of sterilization—in which consent was elicited by women in labor).

396 See id. (“This practice of securing consent from a woman who is in labor is analogous to a policeman obtaining a confession from a suspected criminal under duress. In both cases, a person in authority … takes advantage of an individual in a position of relative weakness, rendering the ‘voluntariness’ of that individual's uttering suspect.”).

397 See supra Part III.A.3. for a discussion of the tension between patient and doctor in decisionmaking during labor.

398 See supra note 218 and accompanying text; MINN. DEP't OF HEALTH, IF YOU ARE PREGNANT: INFORMATION ON FETAL DEVELOPMENT, ABORTION AND ALTERNATIVES (2009), available at http://www.health.state.mn.us/wrtk/handbook.html (“The information provided in this booklet is designed to provide you with basic, medically accurate information on the fetal development of your unborn child in two-week intervals from implantation to birth. It will include such details as average weight and length, organ development and movement for that age.”).

399 See supra note 218 and accompanying text; KAN. DEP't PUB. HEALTH, IF YOU ARE PREGNANT, available at http://www.womansrighttoknow.org; LA. DEP't OF HEALTH AND HOSPS., ABORTION: MAKING A DECISION, available at http://new.dhh.louisiana.gov/assets/docs/Abortion- MakingaDecision.pdf; VA. DEP't OF HEALTH; FETAL DEVELOPMENT: UNDERSTANDING THE STAGES AND ABORTION MAKING AN INFORMED DECISION (2010), available at http://www.vahealth.org/ wih/Documents/2010/Consent/FetalBrochFinChngs%2095.p.pdf.

400 See SHERWIN, supra note 31, at 115.

401 See supra note 63 and accompanying text.

402 See Maclean, supra note 358, at 220-30 (discussing the need for a separate tort of breach of consent to enforce a more relational discursive process of informed consent).

403 See supra Part III.A.3.

404 See Law, supra note 26, at 370-71. Law notes one newspaper article that does report such a recovery. See Betsy A. Lehman, Woman Wins $1.53m Suit on Unwanted Caesarean, BOSTON GLOBE, June 16, 1993, at A1.

405 See Saul, The Gift of Life, supra note 122 (“Some doctors say that powerful financial incentives hold sway in a competitive marketplace. Placing extra embryos in a woman's womb increases the chances that one will take. The resulting babies and word of mouth can be the best way of luring new business.”).

406 793 P.2d 479 (Cal. 1990); see also, e.g., Redford v. United States, No. 89-2324, 1992 U.S. Dist. LEXIS 4712 (D.D.C. Apr. 10, 1992) (damages given for having been treated with a hysterectomy after complaining of benign symptoms); sources cited supra note 63.

407 See, e.g., Forell & Sortun, supra note 179 (advocating for a statutory tort for betrayal of trust with limited damages in various contexts, including informed consent, where trust is betrayed).

408 Fertility Clinic Success Rate and Certificate Act, 42 U.S.C. §§ 263a-1 to -7 (2006). This Act requires the “annual reporting of clinic-specific success rates, listing of clinics that do not report, development of a model program for certification of embryo laboratories, and promulgation of criteria and procedures for approval of accreditation programs to inspect and certify embryology laboratories.” Adamson, David, Regulation of Assisted Reproductive Technologies in the United States, 39 FAM. L.Q. 727, 731 (2005).Google ScholarPubMed