This article, prepared for the 2011 Wiley A. Branton Symposium at Howard Law School, provides a snapshot of how current law and practice generate mixed messages about prenatal genetic testing and abortion. The ability to screen and to test for genetic conditions prenatally is expanding, not only because of technological innovations but also because of increased legal and financial incentives. At the same time that prenatal genetic testing is expanding, abortion – one option pregnant women have after testing – is contracting. Federal and state legislation restricts abortion services, for example, by reducing or prohibiting funding; banning the types or limiting the timing of procedures; regulating facilities and physician conduct; and requiring patients to submit to counseling or other informed consent requirements.
The first two parts of this article briefly describe the state of screening and testing today, innovations in non-invasive testing, and the obstacles to and restrictions on abortion services in the United States. The last part considers how similar questions have different answers depending on whether one is discussing testing or abortion – what is defined as prenatal health care; what is the nature and scope of informed consent; how should the integrity of health professionals be protected; and what is the value of women’s autonomy in making decisions about abortion or testing? Drawing briefly on international experience, the article concludes by suggesting how to understand the interplay of abortion and testing decisions in a more nuanced way.
Rachel Rebouché & Karen Rothenberg, Mixed Messages: The Intersection of Prenatal Genetic Testing and Abortion, 55 How. L.J. 983, available at http://scholarship.law.ufl.edu/facultypub/262