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The South Dakota health department has threatened to suspend the license of the only abortion business in Sioux Falls, Planned Parenthood, over its alleged failure to follow state law.

According to KSFY-TV in Sioux Falls, the state agency has issued a formal notice to the business that it must comply. The report said Planned Parenthood has responded by going to court and seeking protection from the state law.

WND has reported previously on the dispute over a 2005 state law – affirmed by the 8th U.S. Circuit Court of Appeals – that requires abortionists to provide patients with specific information before an abortion is legal

Only days ago, in a letter to the state, a copy of which was obtained by WND, a number of interveners in a lawsuit by Planned Parenthood against South Dakota over the law expressed alarm that even a full year after the appellate court issued its ruling, the organization apparently remains in deliberate violation.

“Planned Parenthood lost, our side won and yet Planned Parenthood defies the decision of the en banc panel of the U.S. Court of Appeals,” said the letter, obtained by WND from a source with links to the case.

The Cassidy Law Firm that represented the interveners said it could not comment or provide information on the situation. The office of the state attorney general did not provide a response to WND inquiries about the group’s compliance.

Doneen Hollingsworth, the secretary of health for the state, told WND in a statement the agency “is required to inspect abortion facilities and enforce applicable laws and regulations. In order to ensure compliance with the law, the department met with Planned Parenthood representatives July 30 regarding findings from its most recent inspection.

“The department can not discuss specifics of those compliance issues at this stage in the regulatory process. The Department of Health does and will continue to enforce this and other laws,” the statement said.

When the letter was revealed, WND contacted Planned Parenthood, where Media Relations Director Kathi Di Nicola said, “I can tell we are in compliance with the law in South Dakota.”

WND reported in July 2008 when the appellate judges ruled constitutional the state’s law that requires abortionists to inform women – before an abortion – that the procedure “will terminate the life of a whole, separate, unique, living human being.”

The letter said, “The statute expressly states that the physician’s disclosure statement must include the disclosure ‘that the abortion will terminate the life of a whole, separate, unique, living
human being.’ The term ‘human being’ is defined by S.D.C.L. 34-23A-1(4) in the biological

Also, the letter said, “The Disclosure Form created by the South Dakota Department of Health, as it relates to the Human Being Disclosure, accurately reflects the command of the Statute, and is the only wording of the disclosure which would properly comply. Your language is correct as
written: ‘1-b) The abortion will terminate the life of a whole, separate,
unique, living human being; the term ‘Human Being’ means, for
the purpose of this and following disclosures, ‘an individual living
member of the species Homo sapiens during its embryonic and
fetal ages.'”

It continued, “The en banc panel of the U.S. Court of Appeals held that this disclosure as written was constitutional. Planned Parenthood v. Rounds, 530 F.3d 724 (8th Cir. 2008) (en
banc). If Planned Parenthood does not use the language drafted by the Department of Health, it
is not in compliance with the statute,” the letter said.

“The language used by Planned Parenthood does not comply: ‘South Dakota
requires that you be informed that, as a matter of biology, the abortion will terminate a
developing, living organism (an ’embryo’ or ‘fetus’) of the human species (‘Homo sapiens’)
that, in the absence of abnormality, has a complete, separate genetic makeup that is unique to
that embryo or fetus,'” the letter said.

“The statute requires a straight forward statement that is easily understood by a lay
person, that the abortion terminates the life of a human being. The precise language was
carefully selected by the legislature. The language used by Planned Parenthood not only fails to
use the clear and proper language, but Planned Parenthood’s language is inaccurate, incomplete,
misleading and very confusing,” the letter said.

The South Dakota law is far more strict that other regulatory provisions. It allows a woman who alleges she was not provided with the proper informed consent to sue for damages. It allows a prosecutor to pursue criminal charges against a physician who fails to provide the proper informed consent, and it allows the state to investigate and act against the license of any facility where the requirements for such informed consent are not met.

Specifically, the law requires abortionists to explain to women that:

  • The abortion will terminate the life of a whole, separate, unique, living human being;
  • The pregnant woman has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota;
  • That by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated;
  • A description of all known medical risks of the procedure, including depression and related psychological stress and increased risk of suicide

The 8th U.S. Circuit Court of Appeals opened the way for the application of the law by lifting an injunction that had stopped its implementation.

A 7-4 ruling lifted the injunction against the South Dakota informed consent abortion law. Attorneys representing the Alliance Defense Fund filed a friend-of-the-court brief on behalf of the Family Research Council in defense of the law.

“A woman’s life is worth more than Planned Parenthood’s bottom line,” said ADF Senior Counsel Jordan Lorence in a statement at the time. “Anyone truly concerned about the interests of women supports making sure they have access to all the information necessary to make a fully informed decision. Planned Parenthood, on the other hand, has argued adamantly to restrict the information women have about the lives of their pre-born babies.”

The appellate court said U.S. Supreme Court rulings allow a state to “use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient’s decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion.”

According to a related letter from the South Dakota Department of Health, also obtained by WND, as recently as May 1, Planned Parenthood in Sioux Falls was advised its forms “do not meet the legal requirements of SDCL 34-23A-10.1 in several significant areas, therefore we cannot approve the forms at this time.”

On one of the proposed forms from Planned Parenthood, the nation’s abortion industry leader said, “The State of South Dakota has enacted a law that requires Planned Parenthood also to provide the following information to you. Planned Parenthood believes this information is, in some instances, wrong and/or misleading. Planned Parenthood objects to having to provide this information.”

The form then states that “as a matter of biology, the abortion will terminate a developing, living organism,” that the U.S. Constitution protects “your ‘relationship’ with the embryo” and that “suicide and thoughts of suicide are ‘known medical risks.'”

The form at that point also adds editorial commentary from Planned Parenthood: “Planned Parenthood wants to be sure that you understand that the U.S. Constitution protects your decision about the nature of any ‘relationship,’ and your decision whether to continue this pregnancy to term or to terminate the pregnancy. These are your decisions to make, and no one can coerce you into make one choice or the other.”

Further, it flatly states the state requirement to cite the abortion-linked suicide dangers as a known medical risk “is wrong and/or misleading.”

The interveners, several physicians and pregnancy centers, were alarmed because of the revelation during a July 12 court hearing that the state Department of Health was planning a  meeting with Planned Parenthood.

It is in that interest they sought the letter, which continued, “Planned Parenthood’s disclosure forms fail to comply with the statute in many ways,
and it is clear that if the statute is not properly enforced, the interests of the pregnant women it
was intended to protect will suffer significantly.

“Perhaps the most egregious aspect of Planned Parenthood’s disclosure form is the
‘disassociation’ language employed. The presence of the disassociation language violates the act. It is criminal as written. By telling women that the disclosures are made only because Planned Parenthood is required to make them, but that they are false, violates the law. The law requires disclosure of
accurate scientific and medical facts. By denying the truth of those facts, Planned Parenthood is
refusing to make the disclosures.

“The interveners feel it is essential to preserve the rights and interests of pregnant women
who consult with Planned Parenthood, and that the law be strictly enforced. It is now obvious
that Planned Parenthood will not make proper disclosures even when the law requires them to do
so. Even after they lost their argument in court, they defied the law and the decisions of the U.S.
Court of Appeals,” the letter said.

The appellate ruling found the U.S. Supreme Court allows a state to “use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient’s decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion.”

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