Abortionists ordered to follow disputed 'informed consent' law

South Dakota Gov. Dennis Daugaard

Advocates for life captured a huge victory today in the 8th U.S. Circuit Court of Appeals where judges ruled the state of South Dakota can require abortionists to provide specific warnings to patients about just exactly what an abortion is and does.

The much-fought case previously has been to the 8th Circuit for arguments over a preliminary injunction, and the ruling today affirmed part and overturned part of the district court's decision that eventually resulted.

The court found constitutional the state's decision to demand abortionists tell patients three things:

That the abortion will terminate the life of a whole, separate, unique, living human being;
That [the patient] 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.

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The only item the court said the state could not require was a notice from abortionists to patients about the higher risks of suicide linked to abortion, concluding that such terms as "relative risk" and such were not well-defined.

The opinion was written by Diana E. Murphy and joined by Michael Joseph Mellow. Raymond W. Gruender joined the opinion except for a special dissent that the one portion of the law that was thrown out also should have been affirmed.

The law was the first of several huge battles the state of South Dakota and its pro-life community have launched in their war against the Roe v. Wade decision that authorized legal abortions throughout the nation starting in 1973.

This "informed consent" law was adopted in 2005 and still is not yet final – there could be further appeals to the U.S. Supreme Court. And then just last year the legislature in South Dakota adopted a stunning 72-hour waiting period between the time an abortionist would see a patient and the procedure could happen. That law also requires abortionists to refer patients to a counseling center – and affirm that they have had that counseling – before an abortion can be done.

The 2005 law already has a long history in the courts. After its adoption, officials with the abortion-industry leading Planned Parenthood of Minnesota, North Dakota, South Dakota and their chief, Carol Ball, sued.

The case challenged House Bill 1166 and a local judge granted a preliminary injunction halting its enforcement, an injunction which first was upheld, then overturned, by the 8th Circuit.

In the eventual district court arguments, Planned Parenthood sought the elimination of all of the requirements, but the judge granted a decision in favor of South Dakota on the requirements to advise about the unborn's status as a human being and regarding some risks. The judge granted judgment for Planned Parenthood regarding the advisories about the relationship and suicide risk.

The 8th Circuit changed the status of the relationship advisory from unconstitutional to constitutional.

Some of the comments from the ruling:

"Planned Parenthood has not demonstrated that the human being advisory would present an undue burden 'in a large fraction of the cases in which [it] is relevant.'"
Regarding the advisory about the existing relationship, "We adopt the reasonable reading South Dakota proposes and hold that [the provision] requires a statement that the women seeking abortion is legally and constitutionally protected against being forced to have an abortion. Since no one can require her to have an abortion, this reading conveys legal information that is truthful, not misleading, and relevant to the abortion decision."

Dr. Allan Unruh, a leader in South Dakota's pro-life movement, called it a huge step in moving toward the ultimate goal of striking down Roe v. Wade. He said dismissal of most of Planned Parenthood's arguments was a "powerful" statement.

"A child's life is worth more than Planned Parenthood's bottom line," said Steve H. Aden, senior counsel with the Alliance Defense Fund, which filed an amicus brief on behalf of the Family Research Council, CareNet, Heartbeat International and the National Institute of Family and Life Advocates.

The key attorney on the case was Harold Cassidy, one of more than 2,000 lawyers in the ADF organization.

"Planned Parenthood and other proponents of death work diligently to restrict the information mothers have about abortion and the life within them. It was incredible for the lower court to have determined that the law cannot acknowledge that a 'pregnant woman has an existing relationship with that unborn human being' because some human beings are somehow not 'persons.' The 8th Circuit rightly determined that it's perfectly constitutional to inform women of an undisputed biological fact," Aden said.

Planned Parenthood runs South Dakota's only abortion business, and it ferries abortionists in several times a week to perform the procedures.

Regarding the risk advisory, the majority admitted that there are a number of peer-reviewed articles that suggest a causal relationship between abortion and suicide, but pro-abortion advocates disagree with them.

The court explained South Dakota common law already requires doctors to inform patients of all the known material or significant risks of a medical procedure.

"Thus, if a doctor considers suicide a known material risk of abortion, there is a common law duty to warn patients." the ruling said.

However, in a strongly worded dissent, Gruender said that advisory also should have been allowed more specifically.

"The peer-reviewed medical literature in the record on the topic of suicide and abortion consistently uses the term 'increased risk' to refer to a relatively higher probability of an adverse outcome in one group compared to other groups – that is, to 'relative risk,'" he wrote. "For example, one study compared the rate of suicide for women who had received inducted abortions with the rates of suicide for two other groups, women who gave birth and women who miscarried.

"Based on the 'accepted usage' of the term …. the term 'increased risk' … indicates that the 'relative risk' definition is the one intended by the legislature for the suicide advisory," he wrote.

"Even the evidence upon which Planned Parenthood repeatedly relies (as does the court today) is consistent with the 'relative risk' definition of increased risk."

He explained that the studies indicate – and "Planned Parenthood's own expert admitted" – that there could be an association between abortion and suicide.

"Despite the extensive evidence in the record of an 'increased risk' of suicide, Planned Parenthood contends that disclosure of the increased risk would be misleading or irrelevant to a patient seeking an abortion," he wrote. "Under this view, the required disclosure would be misleading or irrelevant to the decision to have an abortion because the patient's decision would not alter the underlying factors that actually cause the observed increased risk of suicide.

"The truthful disclosure regarding increased risk cannot be unconstitutionally misleading or irrelevant simply because of some degree of 'medical and scientific uncertainty," he continued.

He wrote that even the American Psychological Association, largely supportive of abortion, acknowledges "that abortion has not been ruled out as a causal factor and that better-designed studies would be needed to do so."

The most recent requirement for abortionists – a 72-hour waiting period and mandatory referral for patients to counseling – also is in the courts.

Supporters call the bill a precedent-setter that is one of the most significant pieces of legislation since Roe v. Wade in 1973 and say they have lined up volunteer donors to fund the cost of the state's defense of the law.

In the signing message from Gov. Dennis Daugaard, he said, "everyone agrees with the goal of reducing abortion by encouraging consideration of other alternatives. I hope that women who are considering an abortion will use this three-day period to make good choices."

The plan, which earlier sailed through the state legislature, is "An Act to establish certain legislative findings pertaining to the decision of a pregnant mother considering termination of her relationship with her child by an abortion, to establish certain procedures to better ensure that such decisions are voluntary, uncoerced, and informed, and to revise certain causes of action for professional negligence relating to performance of an abortion."

Daugaard said he consulted with state Attorney General Marty Jackley over the plan and was informed supporters, including prime sponsor state Rep. Roger Hunt, had arranged for private funds to be committed to finance the state's defense if needed, so that the bill would not impact Daugaard's efforts to balance the budget.

Hunt earlier told WND the new law, HB 1217, is a logical extension of the concern that led to House Bill 1166 several years ago, the informed-consent concept that Planned Parenthood unsuccessfully challenged in court.