ST. LOUIS (BP)–In a rare 11-judge hearing, a federal appeals court is considering whether physicians in South Dakota should be required to tell women seeking an abortion that they will be terminating “the life of a whole, separate, unique, living human being,” and observers say the outcome could reverberate nationwide.
Oral arguments began April 11 before the 8th U.S. Circuit Court of Appeals in St. Louis, which must decide whether an injunction imposed by a federal judge on a law enacted by the South Dakota legislature in 2005 was appropriate. The law would have required doctors to tell women verbally and in writing that abortion ends a human life, could cause depression and suicide, and ends a woman’s constitutionally protected relationship with her unborn child.
“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,” U.S. District Judge Karen Schreier in Rapid City said in issuing the injunction days before the law would have taken effect.
Schreier is still deciding the constitutionality of the law while the 8th Circuit decides whether the injunction is legal. In October, a three-judge panel of the 8th Circuit decided 2-1 that the law should remain blocked because it supplements factual information with a value judgment, as The New York Times described the judges’ ruling. But the full appeals court agreed to reconsider based on an appeal by the state.
Harold Cassidy, the chief counsel for several pregnancy care centers in South Dakota that have intervened in the case, said it’s the first time a federal appeals court will address the question of whether an abortion terminates the life of a human being and the fact that an abortion ends a woman’s relationship with her child. Cassidy also said it’s the first time pregnancy care centers are directly pitted against an abortion clinic.
The care centers have complained repeatedly that the Planned Parenthood facility in Sioux Falls — the only abortion provider in the state — fails to provide meaningful information about abortion procedures, Cassidy said. The legislature passed the law to require that the doctors disclose relevant information, but Planned Parenthood says the law violates doctors’ free speech rights.
“There is no medical data that determines when a fetus becomes a human being,” Sarah Stoesz, chief executive of the three-state Planned Parenthood affiliate that filed the suit, told the St. Louis Post-Dispatch, adding that the law is meant to intimidate women into halting plans for an abortion and intimidate doctors into refusing to perform the procedure.
The Alliance Defense Fund filed a friend-of-the court brief in March on behalf of the Family Research Council.
“Anyone truly concerned about the interests of women would support a woman having access to all the information necessary to make a fully informed decision,” ADF senior counsel Jordan Lorence said. “Instead, the abortionists argue adamantly to restrict the information women have about the lives of their pre-born babies.”
ADF said that since abortionists stand to profit financially from a woman deciding to abort her child, a conflict of interest should prevent abortionists from speaking on behalf of women in court.
“Someone who has a financial stake in performing abortions should not be allowed to represent women in a case challenging women’s right-to-know laws,” Lorence said. “Because an abortionist may earn a profit from women who abort their pre-born children, Planned Parenthood should be disqualified from representing the interests of women.”
Cassidy emphasized the need to make an expedient ruling in the case, which isn’t expected for several months.
“Every week, women are losing their rights in South Dakota, every week that this injunction is in place,” Cassidy said in court, according to the Post-Dispatch.
The newspaper said the decision of the full appeals court to conduct the latest hearing “is seen by both sides as a sign that it may overrule the three-judge panel and allow the law to go into effect.”
“We are concerned,” Stoesz of Planned Parenthood said.
Larry Long, South Dakota’s attorney general, said the appeal stemmed from the one dissenting view on the three-judge panel, which noted that the information doctors were required to disclose was factual. Long said the legislature had defined “human being” to mean a member of the species homo sapiens, which is indisputable, The New York Times reported.
Long said, according to the Associated Press, that depending on how the appeals court rules, “lots of other states could require physicians to tell patients the truth, which clearly they don’t know.”
Planned Parenthood fears that if the law is upheld, there is a “strong possibility that copycat legislation will be adopted in other states.” If nothing else, the case could prompt pro-life legislators in the United States to draft more carefully their laws on abortion to avoid courts striking them down, Long said.
The case is Planned Parenthood v. Gov. Michael Rounds.