Important Court Ruling Assures Women Can Know Abortion Risks

National   William Saunders and Greg Mitchell   Jul 27, 2012   |   4:13PM    Washington, DC

The increased risk for suicide for women who experience abortion was front and center in a pivotal court ruling this week. United States Court of Appeals for the Eighth Circuit upheld an important provision in a 2005 South Dakota informed consent statute. The provision at issue requires that physicians seeking to perform an abortion inform the patient of the increased risk of suicide and suicidal ideation attendant to the procedure.

“Informed Consent” is standard operating procedure for physicians and patients considering a medical treatment, procedure, surgery or drugs. At the heart of the case is whether the abortion industry must tell women the possible mental and physical repercussions of a decision to have an abortion, based on confirmed, medical data showing negative consequences of abortion for women.

Soon after the law was enacted, Planned Parenthood’s affiliate in Minnesota, North Dakota, and South Dakota and another abortion provider challenged the law. They argued first that the law was unconstitutional under Supreme Court abortion precedent and separately that it interfered with abortionists’ free speech rights. They lost on both counts.

By the time the constitutionality of the suicide-risk advisory provision was decided, the case had already been before the Court of Appeals twice.

In prior rulings, the court had upheld most of the provisions challenged by the abortion providers. As a result, abortion providers in South Dakota are now required to furnish each patient a written advisory which informs her that the unborn child whose life will be terminated is a “whole, separate, unique, living human being,” that the patient has a special relationship with the child, and that the relationship enjoys constitutional protections which would end in the event she decides to have an abortion.

Other provisions call for the patient to sign every page of the advisory and require the physician to answer any questions the patient has in writing, with the responses to be included in her medical file, and required that the patient be provided with contact information for local pregnancy care centers. In multiple decisions, all these provisions were upheld.

The suicide-risk provision, however, had previously been struck down by a three-judge panel. But this week the entire court reversed and upheld the requirement that women be advised of the risk of suicide associated with abortion.

The court held that, under Planned Parenthood v. Casey, the requirement did not impose an “undue burden” on a woman seeking to have an abortion. Relying on the 2007 Supreme Court decision Gonzales v. Carhart, which upheld a federal ban on partial-birth abortion, the court ruled that for Planned Parenthood to prevail, it must show that there is absolutely no medical or scientific evidence affirming the link between abortion and suicide risk.

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The evidence in the record overcame Planned Parenthood’s burden with the court citing “extensive evidence” of the correlation between abortion and increased risk of suicide. A brief submitted to the court by Americans United for Life (originally filed in 2009, and re-filed in December 2011 at the request of the Eighth Circuit) on behalf of the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), Christian Medical & Dental Associations (CMDA), and other medical organizations, emphasized the medical evidence that warranted the legislation and insisted upon the proper standard of review for the challenge under Gonzales. The opinion issued on Tuesday accepts the legal arguments advanced in AUL’s brief.

Tuesday’s decision will prove to be a landmark advance for the candid treatment of the mounting medical evidence regarding abortion.