Eighth Circuit to Pregnant Women: You’re Not Carrying a Dolphin!

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Via the Reproductive Rights Prof Blog:

The Eighth Circuit has issued its long-awaited en banc decision in Planned Parenthood v. Rounds, lifting a preliminary injunction against a South Dakota so-called “informed consent law.” The law requires doctors to give women seeking abortions a written statement that tells them, among other things, “that the abortion will terminate the life of a whole, separate, unique, living human being.”

The court admitted that this statement “certainly may be read to make a point in the debate about the ethics of abortion.” You think?! Well… you think wrong, actually. The court admonished that the statement must be read in conjunction with a “limiting definition” found elsewhere in the statute. This definition specifies that”human being” means”an individual living member of the species of Homo sapiens . . . during [its] embryonic [or] fetal age[].”

This, said the court, transforms what appears to be a moral lecture into nothing more than the imparting of scientific fact. Moreover, the court opined, “this biological information about the fetus is at least as relevant to the patient’s decision to have an abortion as the gestational age of the fetus.” I fully agree! Just think of all those scores of women who have flocked to abortion clinics under the sad misimpression that they were carrying developing dolphins. The women of South Dakota can rest safely in the knowledge that, thanks to their wise legislators, they will at last understand the mystery of their pregnancy (but only if they decide to terminate it).

Not surprisingly, the court quoted at length a now-famous passage written by Justice Kennedy in Gonzales v. Carhart, in which the Supreme Court upheld the federal “Partial-Birth Abortion Ban Act.” (As I wrote after Carhart was issued, “it is almost as if this passage were meant instead to go in an opinion upholding a biased information requirement like the South Dakota law currently under consideration by the Eighth Circuit Court of Appeals.”) In it, Justice Kennedy described abortion as entailing “a difficult and painful moral decision” that some women would “regret.” He warned that “[s]evere depression and loss of esteem can follow,” although he admitted that “we find no reliable data to measure the phenomenon.” That passage seemed to make sense only as a blatant signal to the Eighth Circuit, since it was so misplaced in an opinion that addressed how abortions may be performed, not what kinds of information must be given to women seeking abortions.

Via How Appealing:

En banc Eighth Circuit vacates preliminary injunction that prevented the 2005 version of South Dakota’s statute regulating informed consent to abortion from becoming effective: You can access today’s en banc ruling of the U.S. Court of Appeals for the Eighth Circuit at this link. Of the eleven judges who took part in the ruling, seven voted to overturn the preliminary injunction, while four voted to uphold it.

And here’s coverage from the Associated Press.

-Caitlin Borgmann

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0 Responses to Eighth Circuit to Pregnant Women: You’re Not Carrying a Dolphin!

  1. What an absurdity. Did the doctors raise first amendment issues of forced speech?

  2. hysperia says:

    Jehosaphat! When will states tell doctors they have to tell potential tonsillectomy patients that removal of the tonsil will terminate the life of whole, separate, living cells that are unique and irreplaceable. These big boys aren’t fooling anyone, not even the people who like what they’re saying and secretly know that this is a stupid argument that doesn’t prevent abortion anyway but simply increases the suffering quotient. Ahh, could that be the goal?

  3. Yes. Forced speech was the only claim at issue; that was the grounds on which the district court had granted a preliminary injunction. Although the Supreme Court in Casey declared that the state could express a preference for childbirth, the 8th Circuit seemed to want to avoid holding that the state could force doctors to deliver a purely ideological message. Instead, the Court focused on the “truthful and not misleading” language in Casey:

    “Casey and Gonzales establish that, while the State cannot compel an individual
    simply to speak the State’s ideological message, it can 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.”

    This is why the en banc court went into contortions to make the language sound like simply scientific, medical information, as opposed to a moral lecture.

  4. kazul9 says:

    Thanks for the information on the informed consent law, Caitlin. Wow, those are great points.

    We recently wrote an article on informed consent at Brain Blogger. What informed consent really should be is an thorough discussion with your doctor to inform you of the facts of whatever he/she needs your consent for. But, unfortunately, it can’t always be that way.

    We would like to read your comments on our article. Thank you.