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Appeals Court Upholds Final Portion of 2005 South Dakota Law

by | Jul 25, 2012

By Dave Andrusko

Judge Raymond Gruender

In what amounts to the final, complete vindication of a 2005 South Dakota law, the full 8th Circuit Court of Appeals yesterday upheld that portion of H.B. 1166 which requires abortionists to advise women seeking abortions that they face an increased risk of suicidal thoughts and suicide.

“On its face, the suicide advisory presents neither an undue burden on abortion rights nor a violation of physicians’ free speech rights,” wrote Judge Raymond Gruender, author of the 27-page majority opinion. Referring to a multitude of studies that found an increased risk of suicide for women who had received abortions compared to women who gave birth, he wrote, “Various studies found this correlation to hold, even when controlling for the effects of other potential causal factors for suicide, including pre-existing depression, anxiety, suicide ideation, childhood sexual abuse, physical abuse, child neuroticism, and low self-esteem.”

These remarks were particularly significant, because they straightforwardly addressed the crux of the challenge brought by Planned Parenthood and the position taken by the appeals court minority: (1) that the requirement imposes an “undue burden” on abortion rights and violates the abortionist’s free speech rights; and (2) that the studies Judge Gruender referred to failed had failed to take into account such factors as preexisting mental-health issues.

In a statement, South Dakota Attorney General Marty Jackley said, “Today’s decision supports the Legislature’s goal of encouraging women seeking an abortion to make informed and voluntary decisions.”  He added, “Now, essentially, the entirety of the 2005 legislation aimed at helping inform a woman of certain risks before an abortion will now be in place and all of it will be in effect.”

Sarah Stoesz, president of Planned Parenthood Minnesota, North Dakota, South Dakota, said in her statement “This ruling by the 8th Circuit Court represents the greatest intrusion by the government into the patient-doctor relationship to date.”

Other parts of the 2005 informed consent law had already survived Planned Parenthood challenges. The 8th Circuit upheld the provision of H.B. 1166 that abortion-seeking women must be informed they have a legally protected “existing relationship” with their unborn child and that the unborn child is a separate human being.

However last September a three-judge panel of the 8th Circuit upheld a lower court decision that concluded that the increased suicide risk was unproven and may not exist. The state appealed and the case went to the full 8th Circuit Court of Appeals.

The nearly seven-year dispute over H.B.1166 is separate from another lawsuit over a 2011 South Dakota law. Last July U.S. Judge Karen Schreier blocked implementation of H.B. 1217, which requires a three-day waiting period after a woman meets with an abortionist. Women would consult with a pregnancy help center in the interim.

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Categories: Legislation