"Human life" informed consent law upheld

The en banc Eighth Circuit today vacated a preliminary injunction against South Dakota's peculiar law requiring that women seeking an abortion be told the procedure will end the life of a "whole, separate, unique, living human being." The law was originally enjoined in mid-2005, and that injunction was upheld 2-1 by an Eighth Circuit panel. Planned Parenthood's challenge alleged that the law violated the free speech rights of doctors and patients as well as the right to choose an abortion, and was unconstitutionally vague.


The district and panel decisions agreed that the plaintiffs' had a good change of proving the law invalid, on the basis that it forced physicians to express a particular viewpoint on the beginning of human life. Viewing the "whole, separate, unique, living human being" language as "ideological" rather than scientific in content, these judges concluded that the state's message was not susceptible to being proven accurate or misleading.

The en banc majority disagreed, based on the statutory definition of "human being" as a member of the species Homo sapiens. In light of that definition, the majority concluded that the law simply required the provision of biological facts. Since the plaintiff's hadn't made a showing that this statement, so construed, was false or misleading, the injunction was in error.

Prof. Caitlin E. Borgmann at Reproductive Rights Profs Blog sums the decision up this way:

Eighth Circuit to Pregnant Women: You're Not Carrying a Dolphin!

The injunction was solely on the doctors' compelled-speech claim, and the 7-4 en banc ruling is also "based solely" on that argument. Technically, the district court on remand can consider reinstating the preliminary injunction on the basis of the other claims, and/or enter a permanent injunction after trial. But the en banc court's reasoning makes such outcomes unlikely; the right-to-choose claim would also hinge on characterizing the mandated statement as ideological or scientific in nature.

As a commenter and Prof. Borgmann note, the decision quotes Gonzales v. Carhart at length -- yes, that quote:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852–853 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05–380, pp. 22–24. Severe depression and loss of esteem can follow. See ibid.

In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g.,Nat. Abortion Federation, 330 F. Supp. 2d, at 466, n. 22 (“Most of [the plaintiffs’] experts acknowledged that they do not describe to their patients what [the D&E and intact D&E] procedures entail in clear and precise terms”); see also id., at 479.

It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. Casey, supra, at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning”). The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

As Borgmann also notes, this passage was a non-sequitir in Carhart, but seems tailor-made for this case. This seems to confirm the expectation that the main consequence of that decision in the near term will be to encourage and support ideological and misleading "informed consent" requirements.

So what now? If the statute must be construed in light of the definition and only requires factual statements, this would seem to raise the question of what constitutes compliance with the law. If the patient is informed that her body contains an organism that, if the pregnancy were continued, would developed into a baby - but the term "human being" is never used - is that compliance? What if the patient is informed that the pregnancy contains all the genetic information necessary to grow into a self-sufficient person - but the words "whole," "separate," "unique," and "living" are never used? Perhaps there are teeth to the vagueness argument yet. At the least, certification to the state supreme court to clarify the terms of the statute would have been appropriate, and may still be appropriate as the case continues on remand.

I've watched this case carefully since the panel decision. In light of the foregoing I'm not yet sure if this decision sets a truly scary precedent about the kind of tendentious messages states can require, or whether it renders the statute much less troublesome in order to save it.

Legalese alert: The court today also held that the judges below misconstrued the standard for a preliminary injunction; it said that showing you will likely prevail on the merits is a "threshold" inquiry, and can't be "balanced" with the likelihood of irreparable harm and the public interest.