July 25, 2012 — The full 8th U.S. Circuit Court of Appeals on Tuesday upheld a provision of a South Dakota abortion informed consent law that requires physicians to tell women that abortion increases the risk of suicide, the Sioux Falls Argus Leader reports. The 7-4 decision vacates a permanent injunction against the provision issued by a three-judge panel of the same court and removes a remaining legal hurdle for the law to take effect (Hult, Sioux Falls Argus Leader, 7/25).
Since 2005, the law has been the subject of multiple court challenges from Planned Parenthood, with mixed results on its various provisions.
In September, the three-judge panel struck down the suicide provision but upheld requirements that physicians inform women that they have an "existing relationship" with the fetus that is protected by law and that they cannot be forced to have an abortion.
The state and antiabortion-rights groups appealed the decision, requesting that the full court review the suicide provision (Women's Health Policy Report, 12/7/11).
Details of Ruling
Writing for the majority, Judge Raymond Gruender noted that while there is "medical and scientific uncertainty" about a link between abortion and suicide, the link has not been ruled out. "As a result, the disclosure of the observed correlation as an 'increased risk' is not unconstitutionally misleading or irrelevant," he wrote (Phipps, "Law Blog," Wall Street Journal, 7/24).
According to the four dissenting judges, however, the suicide provision violates a woman's due process rights and a physician's free speech rights. "The most reliable evidence in the record shows that abortion does not have a causal relationship to the risk of suicide and that South Dakota's mandated advisory is not truthful, but actually misleading," Judge Diana Murphy wrote for the dissent.
Planned Parenthood Minnesota, North Dakota, South Dakota President Sarah Stoesz said the decision "represents the greatest intrusion by the government into the patient doctor relationship to date" (Bailey, Reuters, 7/24). She added, "Every reputable researcher and medical organization has determined that there is no sound scientific evidence that shows a cause and effect relationship between abortion and suicide" (Bassett Huffington Post, 7/24).
Jen Aulwes, a spokesperson for the organization, said its legal team is discussing whether or not to appeal the case further. "We're in the process of looking at our options," she said.
Meanwhile, Gov. Dennis Daugaard (R) said the ruling "upholds South Dakota's requirement that mothers considering an abortion receive complete information." He commended state Attorney General Marty Jackley (R) for "obtaining this favorable result."
Jackley said the decision establishes a precedent that the state will use to fend off a legal challenge by Planned Parenthood to a 2011 law that mandates a 72-hour waiting period and counseling at a crisis pregnancy center before abortion care. "The hill just got steeper for them," he said (Sioux Falls Argus Leader, 7/25).