Reproductive Rights Prof Blog

Editor: Caitlin E. Borgmann
CUNY School of Law

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Friday, June 27, 2008

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

The Eighth Circuit has issued its long-awaited en banc decision in Planned Parenthood v. Rounds, lifting a preliminary injunction against a South Dakota so-called "informed consent law."  The law requires doctors to give women seeking abortions a written statement that tells them, among other things, "that the abortion will terminate the life of a whole, separate, unique, living human being."

The court admitted that this statement "certainly may be read to make a point in the debate about the ethics of abortion."  You think?!  Well... you think wrong, actually.  The court admonished that the statement must be read in conjunction with a "limiting definition" found elsewhere in the statute.  This definition specifies that “human being”  means “an individual living member of the species of Homo sapiens . . . during [its] embryonic [or] fetal age[].” 

This, said the court, transforms what appears to be a moral lecture into nothing more than the imparting of scientific fact.  Moreover, the court opined, "this biological information about the fetus is at least as relevant to the patient’s decision to have an abortion as the gestational age of the fetus."  I fully agree!  Just think of all those scores of women who have flocked to abortion clinics under the sad misimpression that they were carrying developing dolphins.  The women of South Dakota can rest safely in the knowledge that, thanks to their wise legislators, they will at last understand the mystery of their pregnancy (but only if they decide to terminate it).

Not surprisingly, the court quoted at length a now-famous passage written by Justice Kennedy in Gonzales v. Carhart, in which the Supreme Court upheld the federal "Partial-Birth Abortion Ban Act."  (As I wrote after Carhart was issued, "it is almost as if this passage were meant instead to go in an opinion upholding a biased information requirement like the South Dakota law currently under consideration by the Eighth Circuit Court of Appeals.")  In it, Justice Kennedy described abortion as entailing "a difficult and painful moral decision" that some women would "regret."  He warned that "[s]evere depression and loss of esteem can follow," although he admitted that "we find no reliable data to measure the phenomenon."  That passage seemed to make sense only as a blatant signal to the Eighth Circuit, since it was so misplaced in an opinion that addressed how abortions may be performed, not what kinds of information must be given to women seeking abortions. 

Via How Appealing:

En banc Eighth Circuit vacates preliminary injunction that prevented the 2005 version of South Dakota's statute regulating informed consent to abortion from becoming effective: You can access today's en banc ruling of the U.S. Court of Appeals for the Eighth Circuit at this link. Of the eleven judges who took part in the ruling, seven voted to overturn the preliminary injunction, while four voted to uphold it.

And here's coverage from the Associated Press.

http://lawprofessors.typepad.com/reproductive_rights/2008/06/eighth-circui-1.html

Abortion, Gonzales v. Carhart, In the Courts, Mandatory Delay/Biased Information Laws | Permalink

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Comments

Thanks for the information on the informed consent law. Yes, I agree, it will definently cause ethical issues.

We recently wrote an article (http://brainblogger.com/2008/07/02/going-beyond-informed-consent/) on informed consent at Brain Blogger (http://brainblogger.com/). What informed consent really should be is an thorough discussion with your doctor to inform you of the facts of whatever he/she needs your consent for. But, unfortunately, it can't always be that way.

We would like to read your comments on our article. Thank you.

Sincerely,
Kelly

Posted by: Kelly | Jul 2, 2008 9:36:19 AM

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