Ruling puts South Dakota abortion consent law into effect

Physicians in South Dakota must tell women seeking an abortion that the procedure will end a human life, after a federal appeals court left intact -- for now -- what is believed to be the only law of its kind.

The 2005 statute amended the requirements for obtaining informed consent to an abortion. Except in medical emergencies, the law requires physicians to provide certain information to the woman, including a written statement that the procedure "will terminate the life of a whole, separate, unique, living human being."

Doctors must certify in writing that the patient understands the information. Physicians found in violation face misdemeanor charges, which include fines and up to one year in jail.

The June 27 decision by the 8th Circuit Court of Appeals overturned an injunction that blocked the language from taking effect, pending the outcome of a constitutional challenge brought by Planned Parenthood Minnesota, North Dakota, South Dakota. The abortion-rights group, which runs the only abortion clinic in the state, said the provision violated doctors' free speech rights and imposed an undue burden on a patient's right to choose an abortion.

But the court concluded in a 7-4 decision that Planned Parenthood failed to present enough evidence to show it was likely to prevail in its claims. Judges allowed the law to be enforced as of July 21 while returning the case to a trial court to decide the constitutional issues. No trial date has been set.

Meanwhile, South Dakota voters will decide on a proposed statewide ban on abortion in a November ballot initiative.

Unlike a prohibition approved by the Legislature in 2006 -- and subsequently rejected by voters as a ballot measure -- the new measure includes exceptions for rape, incest and emergencies that threaten the life or health of the woman.

Impact on doctors, patients

South Dakota Attorney General Larry Long praised the appeals court ruling, saying the law was intended to ensure that patients are given "complete and accurate" information about abortion to help them make informed medical decisions.

"It's clear under [South Dakota's] doctrine of informed consent that patients are entitled to all the available, relevant information about a procedure, be it good or bad," Long said. "Why should we apply a different principle to abortion than in every other [medical] context?"

But Mimi Liu, staff attorney for Planned Parenthood Federation of America, said the law forces doctors to give patients information that is not medically relevant. The group said it plans to comply with the law but already shares with patients the risks and benefits of abortion, as well as alternatives and any other medically pertinent information.

Liu said the mandated language "goes beyond what any doctor should have to discuss with his or her patient and does not help the patient make the best medical decision for herself."

Dissenting judges agreed, saying the law "imposes unprecedented restrictions on women seeking abortion and unprecedented demands on their physicians."

Seventeen states mandate that women receive certain information before getting an abortion, according to 2008 data from the Guttmacher Institute, which supports abortion rights.

The South Dakota State Medical Assn. has not taken a position on the state law or the proposed ballot measure. However, the medical association's CEO Barb Smith said the organization is reviewing the court decision and the impact of the so-called informed consent statute, such as whether it: requires doctors to impart information that is medically relevant; imposes government interference in the physician-patient relationship; or places an unnecessary burden on physicians by requiring them to certify that patients understand the mandated language.

AMA policy states that the choice to support or oppose abortion is one for physicians "to decide individually, based on personal values or beliefs."

The AMA opposes any interference by the government or other third parties that causes a physician to compromise his or her medical judgment as to what information or treatment is in the patient's best interest.