Court considers South Dakota law on abortion consent

A lower court blocked the statute's enforcement because it forces doctors to hew to the state's position that a fetus is a human being.

By Amy Lynn Sorrel — Posted May 22, 2006

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The 8th U.S. Circuit Court of Appeals in April heard oral arguments in a case debating when life begins.

The challenge is over a South Dakota law that requires physicians to inform women seeking an abortion that the procedure would "terminate the life of a whole, separate, unique, living human being" and that the woman has a relationship with the unborn child. The measure also requires doctors to inform women of abortion's medical risks, including psychological effects, and of alternatives, such as adoption.

Nearly 30 states have laws mandating that women seeking an abortion receive specific information about the procedure. South Dakota's act, however, is the only one requiring doctors to impart information about what constitutes a living being, according to the Guttmacher Institute, which tracks abortion legislation and supports abortion rights.

Planned Parenthood Minnesota, North Dakota, South Dakota filed the lawsuit challenging the statute last year. "This is a law that puts physicians in the position of having to indoctrinate a woman as to the state's philosophical view about the organism developing in her body and goes way beyond what the state can compel as reasonable medical treatment," said Roger Evans, senior director for public policy litigation for Planned Parenthood Federation of America.

The measure requires doctors as part of informed consent to create a written disclosure for patients to sign certifying that they have read and understand the information. Doctors who do not follow the steps could face a 30-day jail sentence and a $200 fine.

The U.S. District Court for the District of South Dakota blocked the law's enforcement in June 2005. It found that the statute did not include "a provision allowing the doctor to disassociate himself or herself from the materials." The court concluded that the statute's language is "unconstitutional compelled speech, rather than reasonable regulations of the medical profession." The state appealed, arguing that the law is based on science and that doctors can separate themselves from the statute. Officials from the attorney general's office were not available for comment.

U.S. Supreme Court precedent holds that having doctors give certain information as part of obtaining a woman's consent to an abortion is no different from requirements pertaining to any other medical procedure, District Judge Karen E. Schreier noted. However, the South Dakota statute forces doctors "to enunciate the state's viewpoint on an unsettled medical, philosophical, theological and scientific issue," she wrote. Referring to Roe v. Wade, the district court noted that a fetus is not yet a human being.

The South Dakota State Medical Assn. declined to take a position on the law. "While [the Legislature] did materially change the warnings, it was not sufficient enough to say there were unfairnesses that affected physicians generally," said general counsel David A. Gerdes. An appeals court ruling is not expected for several weeks.

The state in March adopted a law aimed at challenging Roe v. Wade that is also likely to face a legal battle.

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