Court Lifts Injunction On Informed-Consent Law

ST. LOUIS (CN) - The 8th Circuit overturned an injunction preventing South Dakota's 2005 informed-consent law for women seeking abortions and their physicians from going into effect.

The 7-4 ruling is a defeat for Planned Parenthood and other crisis pregnancy centers, which claimed the disclosure requirement violates physicians' free-speech rights, is unconstitutionally vague and unduly burdens patients' rights to an abortion.

The law requires abortion doctors to obtain written consent from a pregnant woman seeking an abortion, except in the case of a medical emergency. Physicians must provide the pregnant woman with a statement disclosing "that the abortion will terminate the life of a whole, separate, unique, living human being" and that, by having an abortion, the pregnant woman is severing her constitutional rights to the "existing relationship" she has with that child.

The consent form also includes a description of the medical risks associated with abortion, including depression and increased suicide rates.

Planned Parenthood also took issue with the law's definition of a "human being" as "an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation."

The district court granted a preliminary injunction based on its finding that Planned Parenthood would likely succeed on the merits of its claims.

But the appellate court reversed, saying the lower court had "enjoined an entire statute based on two short affidavits that ... simply presumed that a key statutory definition would be ignored."

Judge Gruender said the law requires a more rigorous standard for demonstrating a likelihood of success on the merits and noted that the district court had ignored the statutory definition of "human being" in its decision.

Gruender found that Planned Parenthood had not demonstrated its likelihood of success, and because the disclosure information is neither false nor misleading, the plaintiff "has not demonstrated that there is an ideological message from which physicians need to disassociate themselves."

Dissenting Judges Murphy, Wollman, Bye and Melloy said that by upholding an informed-consent law that "imposes unprecedented restrictions on women seeking abortions and unprecedented demands on their physicians, the court has bypassed important principles of constitutional law laid down by the Supreme Court."

Judge Murphy adds that "nowhere did the Supreme Court authorize a state to commandeer the voice of a physician to disseminate its ideological message."

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