HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, June 28, 2008

Informed Consent or Compelled Speech

The Eighth Circuit has overturned an injunction granted to Planned Parenthood that prevented the South Dakota informed consent abortion statute from going into effect. The ASCBlog reports on the case and states,

An en banc panel of the U.S. Court of Appeals for the Eighth Circuit voted 7-4 to overturn a preliminary injunction against South Dakota’s statute requiring “informed consent” prior to an abortion. Among other things, the statute requires physicians to provide a written statement to a patient declaring “the abortion will terminate the life of a whole, separate, unique, living human being.”

Majority Opinion

The majority opinion in Planned Parenthood Minnesota v. Rounds recognized a higher standard of review for preliminary injunctions that enjoin the enforcement of a state statute. The opinion by Judge Raymond Gruender, instead of using the “fair chance” standard, which requires plaintiffs to show they have a fair chance of prevailing on the merits, now requires district courts to find that “a party is likely to prevail on the merits.” . . .

Dissenting Opinion

The dissent, written by Judge Diana Murphy, argued that the court “bypassed important principles of Constitutional law” as well as “depart[ed] from established practice by not remanding for the district court to have the opportunity to apply the new standard.” The Court characterized [the statute's requirements] saying “the obvious objective of the Act . . . is to use the concept of informed consent to eliminate abortions.”

Judge Murphy concluded the law “more than likely violates constitutionally recognized fundamental rights of women seeking an abortion and of attending physicians.” It “compel[s] doctors to communicate the state’s ideology,” and interferes “with the doctor patient relationship.” . . .

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