U.S. appeals court upholds S. Dakota informed consent law

Sioux Falls, S.D., Jun 28, 2008 / 18:24 pm

The U.S. Eight Circuit Court of Appeals ruled on Friday against a temporary injunction filed to block the implementation of an informed consent law requiring abortion providers to inform women patients, in writing, that an abortion procedure “will terminate the life of a whole, separate, unique, living human being.”

The court’s opinion, “Planned Parenthood et al v. Rounds et al, Alpha Center et al, Intervenors,” considered South Dakota’s 2005 Informed Consent Law and ruled that the law may be enforced while its constitutionality is litigated in court.

Planned Parenthood Minnesota, North Dakota and South Dakota and its medical director Carole E. Ball, M.D. had sued to prevent the act from taking effect, arguing that the laws’ requirements are unconstitutionally vague, unduly burdensome for physicians and in violation of physicians’ free speech rights. In addition, Planned Parenthood argued certain requirements were excessive burdens upon patients’ right to an abortion and right to free speech.

The appeal court’s opinion in great part centered upon the question of whether the statement “abortion will terminate the life of a whole, separate, unique, living human being” is truthful, non-misleading, and relevant to a woman’s decision to undergo an abortion.

The majority ruled that Planned Parenthood had “submitted no evidence” proving the law falls short of legal standards of truth, honesty, and relevance. The decision also cited testimony from doctor and geneticist Marie Peeters-Ney, M.D., who argued that “becoming a member of our species is conferred immediately upon conception.”

South Dakota’s informed consent law requires any physician who performing an abortion to obtain “voluntary and informed written consent” from a woman seeking an abortion, except in cases of medical emergency.

The information the woman must be provided includes the knowledge “that the abortion will terminate the life of a whole, separate, unique, living human being” and “that 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.” Further, she must be informed “that by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated.”

The abortion provider must also describe all known medical risks of the abortion procedure and the statistically significant risk factors to which the woman will be subjected. According to the law, these risk factors include “depression and related psychological distress” and “increased risk of suicide ideation and suicide.”

Under the law, informed consent must be secured through a statement by telephone or in person by the physician who will perform the abortion, the referring position, or an agent of either. At least 24 hours before the abortion takes place, the patient must be informed that medical assistance for prenatal care, childbirth and neonatal care may be available. The woman considering an abortion must also be told that the father of the unborn child is legally responsible for financial support, even if the father has offered to pay for the abortion.

Finally, the law requires a woman to be informed of the name, address, and telephone number of a pregnancy help center in “reasonable proximity” to the abortion facility.

Speaking in a press release, Kimberly Martinez, a spokeswoman for the Intervenor Alpha Center, said in response to the decision: "We are delighted by the Court's decision. Alpha Center exists to tell South Dakota women the whole truth about their pregnancies. Thanks to today's decision by the court, women are now going to be given the truth by abortion providers, who have been fighting to avoid doing so for years."

Harold Cassidy, chief counsel for the Interveners, added: "Planned Parenthood, in a shocking, and perhaps perverse, logic, argued that abortion doctors were harmed by being required to tell women the truth, and this supposed harm outweighed the damage to pregnant mothers who lost their children because of these doctors' failure to make material disclosures."

Dr. Glenn A. Ridder, one of the intervening parties, observed: "The doctor who has a pregnant mother as a patient in reality has two separate patients, the mother and the child. It is a basic truth that the mother can not make an informed judgment about the welfare of the child or herself if the mother isn't told -- in unambiguous language -- the consent she is able to give to an abortion doctor authorizes the termination of the life of the doctor's second patient."

The Eighth Circuit Court of Appeals has remanded the case to district court for further proceedings.