A federal appeals court affirmed the last provision of a long-disputed informed consent law today, ruling that the state of South Dakota can require abortionists to inform women seeking to terminate the lives of their unborn baby that they face an increased risk of suicide.
Attorney Harold J. Cassidy called the decision of the full 8th Circuit Court of Appeals “a fabulous victory for the women of the state of South Dakota.”
Cassidy represents Leslee Unruh, president of the Alpha Center of Sioux Falls, and Stacy Wollman, president of Care Net of Rapid City. They were allowed in intervene in the case filed by Planned Parenthood against the state’s new law.
“This victory represents the fourth separate decision of the 8th Circuit reversing the district court in this one case, two decisions issued by en banc (full) courts four years apart – a rare occurrence that underscores the importance of the issues presented by the case,” said Cassidy.
“As a result of this case upholding all eight major provisions of South Dakota’s Abortion Informed Consent Statute, pregnant mothers will now be informed: 1) that ‘an abortion terminates the life of a whole, separate, unique, living human being;’ 2) that the mother’s ‘relationship with that second human being enjoys protection under the Constitution of the United States and the laws of South Dakota;’ 3) ‘that relationship and all rights attached to it will be terminated;’ and 4) the abortion places the mother ‘at increased risk for suicide ideation and suicide,’” he said.
The court’s opinion said even Planned Parenthood’s own testimony documented a link between abortion and suicide.
“Planned Parenthood’s own expert, Dr. Nada Stotland, admitted that one of the studies, which determined a suicide rate after abortion of 31.9 per 100,000 as compared to a suicide rate after live birth of 5.0 per 100,000, ‘indicates an association; not causation, but an association’ between abortion and suicide,” the judges wrote.
Commenting on the decision, Steven H. Aden of the Alliance Defending Freedom said “a woman’s right to make a fully informed choice is more important than Planned Parenthood’s bottom line.”
“If Planned Parenthood truly cared about the well-being of women, it would not try to prevent them from being informed of the well-documented risk of suicide that accompanies abortion,” he said. “The 8th Circuit has done the right thing in upholding a reasonable law that protects the well-being of women by making sure that the truth is not hidden from them.”
The Sioux Falls Alpha Center’s Unruh said the ruling “gives hope to the hopeless.”
“These are women who had abortions who were coerced, persecuted, broken. These women did a very courageous thing in going to the South Dakota legislature and telling their stories,” she said. “These judges have believed them, listened to their hearts and have ruled on their behalf.”
The lawsuit was brought by Planned Parenthood against the state after the legislature in 2005 adopted the new informed consent requirements for abortionists.
Cassidy noted that normally a statement of the importance of the decision would suffice.
“However, we feel that, in this instance, given the fact that South Dakota’s Informed Consent Statute, passed to protect the interests of pregnant mothers in South Dakota, was the subject of false claims and protracted litigation that took seven years to conclude, and required the intervenors to win four different appeals in the Eighth Circuit, requires further comment,” he said.
“Throughout the legislative processes, over the past eight years, and all during the pending of this litigation, as well as that of the new case now pending in the District Court (in which Alpha Center and Care Net are party intervenors), Planned Parenthood has threatened expensive litigation and counsel fees. Planned Parenthood has argued that they should be free to perform their radical abortion practices the way its New York City office prefers and that the people of the state of South Dakota should not impose regulations that reflect the values of the people of the state; and the people should not protect the interests of their pregnant mothers.
“Planned Parenthood has been proven completely wrong on every issue in the case. The state statute is a constitutionally valid method to protect pregnant mothers,” he said.
“The people of the State of South Dakota have stood up to the threats, false accusations and litigation tactics of Planned Parenthood. In the process, the people of South Dakota have shown that they will not be intimidated by threats of litigation, threats of payment of attorneys’ fees, and will hold fast to their conviction that a handful of people in New York, with a radical philosophy, will not dictate to the people of South Dakota, when, if, and how they will protect their women from harm, pressure, coercion and false and incomplete information when making the most important decision of their lives,” he said.
Another new law adopted in South Dakota is subject to a second challenge by Planned Parenthood. The law requires that a physician have a personal interview with a woman seeking an abortion. The woman must be offered counseling by state-approved counseling centers before the abortionist can schedule the procedure.
In South Dakota, Planned Parenthood flies abortionists in to a facility where they perform abortions. The law requires doubling the visits, because an abortionist could not interview a woman and perform an abortion on her during the same trip.
The law also requires that an abortionist determine whether the woman is being coerced into the abortion and imposes a waiting period.
Several of the requirements no longer are being challenged by Planned Parenthood, and they are going into effect in the state. Remaining under challenge is the counseling requirement along with the three-day waiting period.
The state recently announced: “Pursuant to the 2011 and 2012 legislation and the order, beginning July 1, 2012, doctors who perform abortions must assess each woman for pre-existing risk factors such as coercion and must advise the woman about the risk of adverse psychological outcomes.”
During the 2012 legislative session, South Dakotans amended several portions of the 2011 abortion law, and Planned Parenthood followed up with an amended complaint. Planned Parenthood dropped its challenge to the provisions regarding coercion and a risk-factor assessment but continued challenging requirements regarding the referrals to the pregnancy help centers and the three-day delay.
As a result, the two sides agreed to an order that the coercion and risk-factor assessment provisions could go into effect right away.
“The remaining challenged provisions – the requirement for involvement of the pregnancy help centers and the three-day delay – will continue to be enjoined pending the outcome of discovery, briefing and argument before the district court,” the state’s announcement said.
According to a statement by the Alpha Center of Sioux Falls and the Black Hills Pregnancy Center of Rapid City, two abortion alternative centers to which women may be referred, the decision from Judge Karen Schreier opens the door to substantial new requirements for abortions.
“Planned Parenthood can no longer have a clerk schedule abortion surgery – which has been its practice – without a physician first seeing a pregnant mother, compelling a change in the practices at the Planned Parenthood abortion facility,” the statement said.
“Only a physician can schedule an abortion, and only after the physician first performs an assessment, which includes an assessment to determine if the pregnant mother is being pressured or coerced into having an abortion. Until now, no such assessments were performed, and no physician saw the pregnant mother until after the surgery was scheduled and only after she was required to sign a consent for the abortion and only after she was required to pay for the abortion,” the statement continued.
In today’s decision over the 2005 law, the appeals court ruling said: “To succeed … Planned Parenthood must show that the [suicide-abortion link] disclosure at issue ‘is either untruthful, misleading or not relevant to the patient’s decision to have an abortion.’”
“The legislature expressly required the disclosure of an ‘increased risk,’ not a causal link. Based on the accepted usage of the term ‘increased risk’ … the usage of that term … does not imply a disclosure of a causal relationship,” the court said.
Instead, the section “requires a disclosure simply that the risk of suicide and suicide ideation is higher among women who abort.”
The judges also said, “We hold that the disclosure facially mandated by the suicide advisory is truthful.”
“The state legislature, rather than a federal court, is in the best position to weigh the divergent results and come to a conclusion about the best way to protect its populace. So long as the means chosen by the state does not impose an unconstitutional burden on women seeking abortions or their physicians, we have no basis to interfere,” the court said.