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Biased Counseling & Mandatory Delay

Delaware has a partially unconstitutional and unenforceable law that provides that a woman may not obtain an abortion until at least 24 hours after she gives her written consent.  Prior to giving consent, a woman must receive a state-mandated explanation of the abortion procedure and its effects that must include:  (1) a description of fetal development; (2) an explanation of the proposed procedure, its risks, and the alternative procedures; (3) the probable effects of the procedure on the woman's future childbearing ability and on possible future pregnancies; and (4) an explanation of alternatives to abortion.  Del. Code Ann. tit. 24, § 1794 (Enacted 1979).

In 1983, the Delaware attorney general issued an opinion stating that the 24-hour waiting period was unenforceable.  Del. Op. Att'y Gen. No. 83-I023 (July 27, 1983).  In early 2003, the state notified doctors that it would begin prosecuting cases under the law.  Planned Parenthood and other abortion providers filed a lawsuit challenging the constitutionality of the mandatory delay.  A court held that the waiting period is unconstitutional and permanently enjoined its enforcement.  Planned Parenthood of Del. v. Brady, 03-153-SLR (D. Del. June 9, 2003) (opinion and order).

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