Appeals court to rehear South Dakota law promoting abortion-suicide link

The 8th U.S. Circuit Court of Appeals will re-examine on Jan. 9 whether a 2005 South Dakota law mandating what doctors say to women seeking abortions is constitutional. The court will address again a specific provision in the law requiring physicians to inform patients of possible suicide risks in relation to the procedure.

The provision allows women seeking abortions to make informed decisions and should be allowed to stand, said South Dakota Attorney General Marty Jackley.

"The state is pleased that the full court will address the important issue of suicide risk disclosures for women considering an abortion," Jackley said in an email. "The 2005 disclosure legislation was an attempt by the [South Dakota] Legislature to put in place proper disclosure requirements to ensure a women considering an abortion makes a knowing and voluntary decision. ... It is the state's position that the legislative enactment on suicide risk disclosures is reasonable, factually accurate, not ambiguous, and lawful."

Planned Parenthood officials and other abortion rights advocates argue that a link between abortion and suicide never has been proven, and that the law forces doctors to provide patients with erroneous medical information.

"We believe that scientific research is on our side and that when the court hears the merits of the issue, they will uphold the court's prior decision," said Jennifer Aulwes, a spokeswoman for Planned Parenthood, Minnesota, North Dakota, South Dakota. If the provision is allowed to stand, "doctors providing abortions would need to read a medically inaccurate and scientifically unsupported script to a patient that he or she is about to provide medical care to. It brings up ethical issues for health care providers."

A long court history

The abortion disclosure requirements have been in dispute since their enactment in 2005. Among other mandates, the state law required doctors to tell women seeking abortions:

• That abortion will terminate the life of a whole, separate, unique, living human being.
• That the patient has an existing relationship with the unborn human being that is protected by law.
• A description of all known medical risks associated with having the procedure, including an increased risk of suicide.

Before the law took effect, Planned Parenthood sought an injunction against the requirements, a request that was granted by a district court. An appeals court subsequently overturned the injunction, in part, as it related to the law's "human being disclosure" provision. In a September 2011 decision, a panel of the 8th U.S. Circuit Court agreed with the state that doctors must disclose "all known medical risks" of abortion, but the court concluded that the specified suicide risk disclosure violated the U.S. Constitution. The full court, and not just the panel, will rehear the case Jan. 9.

The state says suicide is three to six times more frequent in women who receive abortions compared with women who undergo childbirth. The state's data primarily relies on a 2009 analysis done by Priscilla Coleman, a human development and family studies professor at Bowling Green (Ohio) State University. She examined the mental state of women who had abortions from data collected by the National Comorbidity Survey, a national mental health survey. She found that compared with other women, women who had abortions were at increased risk for anxiety, mood disorders and substance abuse.

But Aulwes, of Planned Parenthood, pointed to an analysis of the same data in 2010 by Julia Steinberg, an assistant professor of health psychology at the University of California, San Francisco. Steinberg's analysis failed to find the same connection, even without taking into account preexisting factors such as a history of mental health problems.