8th Circuit upholds critical portions of South Dakota informed consent law

Court reverses district judge, says women can be informed they have ‘an existing relationship’ with an ‘unborn human being’

ADF attorney sound bite:  Steven H. Aden

ST. PAUL, Minn. — The U.S. Court of Appeals for the 8th Circuit Friday upheld the majority of South Dakota’s informed consent law, including a requirement that doctors inform pregnant women that they have “an existing relationship” with an “unborn human being.” A lower court ruling had struck down that provision because the judge concluded that preborn children are not “persons.”

Attorneys with the Alliance Defense Fund filed a friend-of-the-court brief last year asking the court to reject Planned Parenthood’s attempt to block portions of the law. ADF filed the brief on behalf of the Family Research Council, CareNet, Heartbeat International, and The National Institute of Family and Life Advocates. ADF-allied attorney Harold Cassidy, one of more than 2,000 attorneys in the ADF alliance, filed the appeal to the 8th Circuit on behalf of a group of pregnancy centers that successfully intervened in the suit to protect the interest of women.

“A child’s life is worth more than Planned Parenthood’s bottom line,” said ADF Senior Counsel Steven H. Aden. “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.”

In 2005, the South Dakota Legislature passed House Bill 1166, which revised state law to require that women be given critical biological, relationship, and medical information before undergoing an abortion. Planned Parenthood, the operator of the state’s only abortion clinic, filed the suit Planned Parenthood v. Rounds to block implementation of the law. After the 8th Circuit lifted a lower court injunction against the law, it was returned to federal district court.

In August 2009, a district court judge ruled that portions of the law requiring doctors to inform women contemplating abortion that they are terminating a human life are constitutional, but she also ruled that other portions requiring doctors to tell women of their legally protected relationship with the preborn child and warning them of the documented risks of depression and suicide from abortion were unconstitutional. The 8th Circuit reversed her decision concerning the “protected relationship” provision and only narrowly upheld the judge’s decision with regard to the “risk of suicide” provision.

Arguing that the “risk of suicide” provision should have been upheld, Circuit Judge Raymond Gruender wrote in dissent that “even the evidence relied upon by Planned Parenthood acknowledges a significant, known statistical correlation between abortion and suicide. This well-documented statistical correlation is sufficient to support the required disclosure that abortion presents an ‘increased risk’ of suicide, as that term is used in the relevant medical literature.” He noted that Planned Parenthood did not challenge the documented risks of depression.

• Pronunciation guide: Aden (AY’-din)