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Appeals Court Blocks South Dakota Law on Doctors’ Statement to Seekers of Abortion

By Adam Liptak, The New York Times, October 31, 2006

The federal appeals court in St. Louis yesterday blocked the enforcement of a South Dakota law that would have required doctors there to tell women seeking abortions that the procedure would "terminate the life of a whole, separate, unique, living human being."

Laws requiring mandatory counseling for women seeking abortions, and their informed consent to the procedure, are common. The United States Supreme Court in 1992 and federal appeals courts since then have upheld such laws, which typically require that medical information about the procedure and its health risks be provided to women before they can proceed with it.

The defect in the South Dakota law, said the majority in yesterday’s 2-to-1 decision by a panel of United States Court of Appeals for the Eighth Circuit, was that it supplemented factual information with a value judgment.

Timothy E. Branson, a lawyer for Planned Parenthood, which brought the suit, said the South Dakota law differed from those around the nation.

"It injects an ideological component into the discussion of the unsettled question of when human life begins," Mr. Branson said. "This is the first case that really shows where the line is."

Larry Long, the South Dakota attorney general, said he had not yet decided whether to appeal to the full appeals court. John P. Guhin, a lawyer on Mr. Long’s staff, said the contested statement was an unexceptional scientific fact and not a value judgment.

Next week, South Dakota voters will decide the fate of a different law, enacted this year, that would ban almost all abortions.

The law at issue in yesterday’s decision was enacted in 2005. In addition to requiring the statement about the life that would be terminated, it imposed a detailed procedure for how the statement was to be conveyed. It was to be made in writing, along with a dozen other statements, including some about the legal relationship between the mother and the fetus, and others about the increased risk of depression and suicide after abortions.

Patients were required to sign each page of a written disclosure. If patients asked for clarification, doctors had to respond in writing. At the end of the process, doctors were required to certify that their patients understood the information.

Judge Karen E. Schreier of the Federal District Court in Rapid City, S.D., issued a preliminary injunction in June 2005, blocking enforcement of the law before it took effect.

"Unlike the truthful, nonmisleading medical and legal information doctors were required to disclose" in the Supreme Court’s 1992 decision, Planned Parenthood v. Casey, Judge Schreier wrote, "the South Dakota statute requires abortion doctors to enunciate the state’s viewpoint on an unsettled medical, philosophical, theological and scientific issue, that is, whether a fetus is a human being."

The appeals court upheld that ruling yesterday, returning the case to Judge Schreier for a final decision.

Requiring doctors to convey information that they do not believe can violate the First Amendment, Judge Diana E. Murphy wrote for the majority, which also included Judge Michael J. Melloy. "Governmentally compelled expression is particularly problematic when a speaker is required by the state to impart a political or ideological message contrary to the individual’s own views," Judge Murphy wrote.

In addition, she continued, the written exchange of information and the doctor’s certification that the patient understood it may amount to an undue burden on the right of abortion.

In dissent, Judge Raymond W. Gruender said the required disclosure was of an obvious medical fact and was proper under the Casey decision. The State Legislature had defined "human being" to mean a "member of the species homo sapiens," Judge Gruender said, rendering the statement that an abortion terminates "a whole, separate, unique, living unborn member of the species homo sapiens" into "nothing but an unremarkable tautology."

Mr. Branson, the Planned Parenthood lawyer, said the Legislature meant to do more than to remind women of something they already knew. "We really don’t think that women are confused about whether they’re carrying a human embryo as opposed to a cat embryo," he said.

Judges Murphy and Schreier were appointed by President Bill Clinton, and Judges Melloy and Gruender by President George W. Bush.

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