Opinion handed down July 24, 2012
Abortion
providers brought an action in federal court challenging the constitutionality
of South Dakota’s amended abortion statute, contending that several of the
statute’s provisions constituted an undue burden on abortion rights and
facially violated patients’ and physicians’ free speech rights.[2] The case has been the subject of litigation
for years.[3] This appeal to the U.S.
Court of Appeals for the Eighth Circuit focused on whether the statute’s
suicide advisory provision was constitutional.
The Eighth Circuit, sitting en banc, concluded that the suicide advisory
provision of the South Dakota abortion statue presented neither an undue burden
on abortion rights nor violated a physician’s free speech rights.[4]
In 2005, legislators in South Dakota enacted a bill
(“the Act”) that amended the requirements for obtaining informed consent from a
woman prior to an abortion as codified in S.D.C.L § 34-23A-10.1.[5] The amended
statute requires that a physician obtain voluntary and informed written consent
from a patient before the physician is legally able to perform an abortion.[6] The provision of the amended statue,
34-23A-10.1(1)(e)(ii) or the “suicide advisory provision,” which was the center
of this Eighth Circuit litigation, required that a physician provide a patient
with a statement in writing with the following information:
(e)
a description of all known medical risks of the procedure and statistically
significant
risk
factors to which a pregnant woman would be subjected, including . . .
(ii)
increased risk of suicide ideation and suicide.
In June 2005, Planned Parenthood sued to prevent the
Act from taking effect, arguing that several of the Act’s provisions
constituted an undue burden on abortion rights and facially violated both
patient’s and physician’s free speech rights.[7] The district court preliminary enjoined the
Act and the Eighth Circuit, siting en banc, later vacated the preliminary
injunction and remanded for further proceedings.[8]
On remand, both parties filed cross-motions for
summary judgment.[9] The district court
ruled that certain parts of the Act were constitutional.[10] However, the court found that disclosure
regarding the protected relationship between the patient and unborn child and
the disclosure regarding suicide advisory failed to meet both constitutional
requirements.[11] Additionally, the
district court found the requirement to disclose “statistically significant
risk factors” of abortion was unconstitutionally vague.[12]
The Governor and Attorney General of South Dakota
(“the State”), along with two intervening crisis pregnancy centers, appealed
the district court’s decision on the relationship disclosure and suicide
advisory requirement. Furthermore,
Planned Parenthood cross-appealed the district court’s decision upholding the
constitutionality of the biological disclosure and the “all known medical
risks” disclosure. The Eighth Circuit
unanimously affirmed the lower court’s holding regarding the biological and
“all known medical risks” disclosure.[13]
However, the court unanimously reversed the district court’s decision
with respect to the relationship disclosure and affirmed in a divided decision
as to the suicide advisory disclosure.[14]
The Eighth Circuit subsequently granted a rehearing en banc solely on
the issue of the suicide advisory disclosure.[15]
Upon rehearing, the full court ultimately concluded
that the suicide advisory, or § 34-23A-10(1)(e)(ii) of the Act, presented
neither an undue burden on abortion rights nor violated a physician’s free
speech rights.[16] As a result, the
Eighth Circuit reversed the district court’s granting of summary judgment to
Planned Parenthood, directed the entry of summary judgment for the State as to
that provision, and vacated the permanent injunction against the enforcement of
that decision.[17]
II. Instant Decision
Planned Parenthood argued that requiring a physician
to disclose the “suicide advisory” to a potential abortion patient during the
informed consent process imposed an undue burden on abortion rights and
violated the free speech rights of the physician.[18] The Eighth Circuit analyzed this argument
according to a seminal Supreme Court decision regarding abortion statutes that
compelled a physician’s disclosure of health risks associated with abortion.[19] Following the Supreme Court’s precedent, the
Eighth Circuit determined that Planned Parenthood must show that the suicide
advisory disclosure provision was either “untruthful, misleading or not
relevant to the patient’s decision to have an abortion” in order for the
organization to succeed on either its undue burden or compelled speech claims.[20] In evaluating the constitutional merits of
Planned Parenthood’s argument, the Court first examined what disclosure was
actually required, second, whether that disclosure was truthful, and third,
whether the disclosure was non-misleading and relevant to the patient’s
decision to have an abortion.[21]
In establishing its argument that the suicide
advisory disclosure was unconstitutional, Planned Parenthood first contended
that the language of the suicide advisory provision “should have been
construe[d] to require a disclosure of a conclusive causal link between
abortion and suicide.”[22] Planned
Parenthood argued that the language in the suicide informed consent provision
implied that an abortion procedure directly caused suicide.[23] The Eighth Circuit rejected this argument and
concluded that the term “increased risk . . . [of suicide]” only suggested that
a patient who goes through an abortion procedure would become a member of group
for which an increased risk of suicide is documented relative to other groups.[24] Furthermore, the Court noted its
interpretation of the term “increased risk,” as it related to suicide, was
consistent with the usage of the term in the relevant medical field, which
further supported its contention that the usage of the term in §
34-23a-10.1(1)(e)(ii) did not imply a disclosure of a causal relationship.[25]
Regarding whether the suicide advisory disclosure
was truthful, Planned Parenthood argued that the medical studies submitted by
the State to support the contention that increased suicide was a genuine risk
did not examine the correlation in sufficient detail “to prove a causal link”
and that an “increased risk of suicide after abortion [was] not ‘known’ as
required by the statute.”[26] The Eighth
Circuit also rejected this position and reemphasized its conclusion that the
statute did not require a “causal link” between abortion and suicide.[27] Additionally, the Court stated that it was
satisfied with the medical literature and expert testimony offered by the
State, which further bolstered the Court’s conclusion that the suicide advisory
was “truthful.”[28]
Lastly, Planned Parenthood claimed that a suicide
advisory disclosure would be misleading and irrelevant to a patient seeking an
abortion.[29] Particularly, the
organization argued that it is more plausible that certain underlying factors
predispose some women to have both unwanted pregnancies and suicidal
tendencies, resulting in a misleading correlation between abortion and suicide
and an absence of a causal component.[30]
In response, the Eth Circuit ruled that Planned Parenthood would have to
prove, to a degree of scientifically accepted certainty, that abortion has been
ruled out as a statistically significant causal factor in post-abortion
suicides.[31] Planned Parenthood
attempted to overcome this threshold by citing several medical studies that
suggested abortion procedures do not “increase the risk of suicide;” however,
the court concluded that the studies did not rule out abortion as a statically
significant causal factor in post-abortion suicides.[32] Furthermore, the Eighth Circuit found glaring
weaknesses in each of the studies submitted by Planned Parenthood that made the
studies somewhat unreliable.[33]
Ultimately, the Court found that Planned Parenthood failed to show that
abortion had been statistically ruled out as a causal factor in post-abortion
suicide and that the suicide advisory was non-misleading and relevant to the
patient’s decision to have an abortion.[34]
As a result of these three findings, the Eighth
Circuit held that the suicide advisory disclosure requirement in §
34-23A-10.1(1)(e)(ii) did not present an undue burden on abortion rights of
patients nor violate physicians’ free speech rights.
Judge Murphy, with whom Judge Wollman, Bye, and
Melloy joined, dissented and argued that South Dakota’s 2005 suicide advisory
was unconstitutional because it [would] not provide information that would
benefit a woman’s free choice to have an abortion because the information was
not consistent with medical evidence.[35]
Judge Murphy focused on the language of the statute and emphasized that
the amendments to 34-23A-10.1(1)(e) required doctors to tell a pregnant woman
of the “known medical risk[s]” of having an abortion.[36] In Judge Murphy’s view, suicide was “not a
known medical risk of abortion” and was caused by factors pre-existing an
abortion as described in numerous medical studies.[37] Judge Murphy set forth medical evidence that
supported the position that “abortion itself was not a cause of suicide” and
also highlighted inconsistencies in the medical studies presented by the State
and interveners that purported to show a correlation between suicide and
abortion.[38]
Therefore, Judge Murphy concluded that by forcing
doctors to inform women that abortion subjects them to a risk which the record
medical evidence refutes, the suicide advisory places an undue burden on a
pregnant woman’s due process rights and violates a doctor’s First Amendment
right against compelled speech.[39]
III. Legal Background
Since the historical Roe v. Wade decision
in 1973, state-enacted statutory legislation purporting to control the
administration of abortions has been challenged on constitutional grounds in
several federal circuit Court of Appeals and in the U.S. Supreme Court.[40] The United States Supreme Court decision in Planned Parenthood of Se. Penn. v. Casey established an
“undue burden” test that has become the standard for determining the
constitutionality of abortion regulation.[41]
Furthermore, the Casey holding
suggested that states have broad discretion in determining what information
physicians will be required to give potential abortion patients without
violating the physicians’ First Amendment rights.[42]
In Casey, abortion
clinics and physicians challenged, on due process and First Amendment grounds,
the constitutionality of a Pennsylvania statute’s informed consent provision
that required a physician to provide women with information about the health
risks and the possible complications of an abortion procedure.[43] The Supreme Court upheld the
constitutionality of the informed consent provision and ultimately concluded
that “when the government requires [as part of the informed consent process] .
. . the giving of truthful, non-misleading information about the nature of the
procedure, the attendant health risks and those of childbirth,” and other
information broadly relevant to the decision to have an abortion, it “does not
impose an undue burden” on abortion rights and “is no different from a
requirement that a doctor give certain specific information about any medical
procedure.”[44]
Additionally, the Casey Court
addressed the physicians’ argument that the informed consent provision of the
Pennsylvania statute amounted to compelled speech and thus violated the
physicians’ First Amendment rights because it “required” the physicians to
inform patients of health-related risks of abortion.[45] The court noted that the “physician’s First
Amendment rights not to speak [were] implicated, but only as a part of the
practice of medicine.”[46] The court
further determined that “the practice of medicine [is] subject to reasonable
licensing and regulation by the State.”[47] As a result, the informed consent
provision in the Pennsylvania abortion statute did not constitute “compelled
speech” and did not violate the physicians’ First Amendment rights.[48]
Based upon the Supreme Court holding in Casey, lower federal courts have developed a test to
evaluate the constitutional merits of state-enacted abortion regulations that
contain a required disclosure or an informed consent provision.[49] When a plaintiff claims that such a provision
constitutes either an “undue burden” on a patient’s ability to obtain an
abortion or “compelled speech” in that it requires a physician to divulge
medical risks of an abortion procedure, the plaintiff must show that the
provision is either “untruthful, misleading or not relevant to the patient’s
decision to have an abortion.”[50]
Regarding whether a required disclosure or an
informed consent provision is “untruthful,” a plaintiff must show that the
medical evidence supporting the State’s argument for the disclosure is flawed
and not sufficiently reliable.[51] To
support the truthfulness of the information that is required to be disclosed, a
state typically submits into evidence respected peer-review studies and medical
journals that provide data showing that the required disclosure contains
reliable health related information that a patient should be aware of.[52] Therefore, federal courts have rarely found
disclosure or informed consent provisions that appear in abortion regulations
to be “untruthful” even if there exists some medical evidence contrary to the
state’s position.[53] But, contrary medical evidence may support a plaintiff’s
argument that the disclosure provision is misleading and irrelevant.[54]
However, if the provision is considered “truthful,”
it will not be ruled unconstitutionally misleading or irrelevant simply because
of some degree of “medical and scientific uncertainty.”[55] The Supreme Court “has given state and
federal legislatures wide discretion to pass legislation in areas where there
is medical and scientific uncertainty” and “medial uncertainty does not
foreclose the exercise of legislative power in the abortion context any more
than it does in any other context.”[56]
Moreover, federal courts have noted that the “non-misleading” and
“relevant” requirements of Casey do not
create a basis for imposing a new, more stringent standard, which requires
“medical certainty” of health risk information a physician is required to
disclose because the procedure at issue is an abortion. In other words, in order for a plaintiff to
render a required disclosure or informed consent provision unconstitutionally
misleading or irrelevant, the plaintiff would have to show that the health risk
related information a physician would be required to disclose is ruled out, to a
degree of scientifically accepted certainty, as a risk of abortion.[57]
In the end, federal courts have established that
“the point of [required disclosure] or informed consent laws is to allow the
patient to evaluate her condition and render her best decision under difficult
circumstances.”[58] Denying a patient
up-to-date medical information hinders her ability to decide more than
providing the information.[59]
Therefore, there is no unconstitutional hindrance of a woman’s choice
when a state is merely using “its regulatory authority to require a physician
to provide truthful, non-misleading information relevant to a patient’s
decision to have an abortion.[60]
IV. Comment
In its analysis, the Eighth Circuit correctly
concluded that the suicide advisory provision of South Dakota’s abortion
statute was truthful, non-misleading, and relevant to a patient’s informed decision.[61] The Court’s decision was supported by
established federal precedent, and contrary to the dissent’s position, was also
supported by sufficient medical evidence.
While there is compelling evidence to bolster the
dissent’s position that suicide is not a known medical risk of abortion, the
legal history, as highlighted by the majority, does not require legislative
decisions to be based upon absolute medical certainty.[62] The majority noted that as long as a
legislative abortion provision is considered “truthful,” it will not be
considered misleading or irrelevant simply because of some degree of medical or
scientific uncertainty.[63] The State
offered medical evidence that displayed a correlation between suicide and
abortion procedures that the Eighth Circuit felt was thorough and reliable
enough to support the State’s argument that the suicide advisory provision was
truthful. Therefore, the mere presence
of contrary evidence would not make the provision automatically misleading or
irrelevant as the dissent attempts to propose.
Although the information physicians are required to
provide here constitutes a sensitive, disturbing, and controversial
psychological medical risk that has been found to be potentially linked to
abortion, the provision ultimately promoted the end purpose of informed consent
laws: to adequately inform a woman’s free choice. A patient should be provided with up-to-date
medical information that will allow her to evaluate her condition and render
her best decision under difficult circumstances.[64] Denying a patient such information is more of
an abuse to her ability to decide than providing the information.[65]
- Haden Crumpton
[1] Nos.
09-3231/3233/3362 (8th Cir. July 24, 2012), available at
http://www.ca8.uscourts.gov/opndir/12/07/093231P.pdf. The West reporter
citation is Planned Parenthood of Minnesota, North Dakota, South Dakota v.
Rounds, 686 F.3d 889 (8th Cir. 2012) (en banc).
[2] Id. at 893.
(remember to cite to the slip opinion “Rounds, slip op. at X.”)
[3] Initially,
the district court granted the providers’ request for a preliminary injunction,
and the case was subsequently appealed to the U.S. Court of Appeals for the
Eighth Circuit where the injunction was vacated and the case remanded for
further proceedings. See id.
[4] See id. at
906.
[5] Id. at
892.
[6] See S.D.
Codified Laws § 34-23A-10.1 (the statute does not require informed consent in
the event of an emergency).
[7] Id.
(Planned Parenthood also contended that other parts of the Act were
“unconstitutionally vague”)
[8] Id.; see
also Planned Parenthood Minn., N.D., S.D., v. Rounds, 530 F.3d 724, 727 (8th
Cir. 2008).
[9] Id.
[10] See id.
[11] Id.; see
also S.D.C.L. § 34-23A-10.1(1)(c); §
34-23A-10.1(10(e)(ii).
[12] Id. at
893.
[13] Id.
[14] Id.
[15] Id.
[16] See id. at
906.
[17] Id.
[18] Id. at
893.
[19] See id.;
see also Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 882-83
(1992).
[20] Id.
[21] Id.
[22] Id. at
894.
[23] See id. at
896.
[24] See
id.
[25] See id. at
898.
[26] Id.
[27] See id. at
899.
[28] See id.
[29] Id.
[30] See id.
[31] Id.
[32] See id. at
902 (Planned Parenthood also attempted to show that the FDA did not require the
manufacturer of the abortion drug Mifeprex to list “increased risk of suicide”
as a “potential safety hazard” associated with taking the drug. The Court also rejected this argument,
stating that “an FDA label does not represent the definitive or exclusive list
of risks associated with a drug.”)
[33] See id. at
904-05.
[34] See id. at
905.
[35] See id. at
907 (J. Murphy dissent).
[36] Id.
[37] See
id.
[38] See id. at
909.
[39] See id. at
912.
[40] See Tex.
Med. Providers Performing Abortion Servs v. Lakey, 667 F.3d 570 (5th Cir.
2012); see also Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 882-83
(1992).
[41] See
generally Casey, 505 U.S. at 882 (1992).
[42] See id. at
884.
[43] See Casey,
505 U.S. at 834 (1992).
[44] See id. at
882-83.
[45] See id. at
884.
[46] See id.
(citations omitted).
[47] Id.
[48] See id.
[49] see id.;
see also Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570,
576-77 (5th Cir. 2012).
[50] See Lakey,
667 F.3d at 576 (5th Cir. 2012).
[51] See id;
see also Planned Parenthood of Minn., N.D., S.D., v. Rounds, 686 F.3d 889, 892
(8th Cir. 2012).
[52] See
Rounds, 686 F.3d at 898-99 (8th Cir. 2012).
[53] See Lakey,
667 F.3d at 576 (5ht Cir. 2012).
[54] Id. at
576.
[55] Id. at
577.
[56] See
Gonzales, 505 U.S. 124, 163-64 (2007).
[57] See
Rounds, 686 F.3d at 899 (8th Cir. 2012).
[58] See Lakey,
667 F.3d at 579 (5th Cir. 2012).
[59] See
id.
[60] See
Rounds, 686 F.3d at 899 (8th Cir. 2012) (slip opinion on all of these).
[61] See
Rounds, 686 F.3d at 906 (8th Cir. 2012).
[62] See id. at
900.
[63] Id.
(citing Gonzales, 550 U.S. at 163 (2007)).
[64] Lakey, 667
F.3d at 579 (5th Cir. 2012).
[65] Id.
