S.D. Informed Consent Warning Can Include Increased Suicide Risks

By Robyn Hagan Cain on July 25, 2012 | Last updated on March 21, 2019

The Eighth Circuit Court of Appeals ruled on Tuesday that South Dakota can require doctors to warn women seeking abortions that they face an increased risk of suicide if they go through with the procedure, reports The Associated Press.

The 7-4 en banc decision reverses a previous panel decision finding that the suicide warning in South Dakota's informed consent law required unconstitutional compelled speech.

South Dakota enacted House Bill 1166 in 2005, amending the requirements for obtaining informed consent to an abortion. The amendments require physicians, in the course of obtaining informed consent, to provide certain information to the patient seeking an abortion.

In June 2005, Planned Parenthood sued to prevent the changes from taking effect, contending that several provisions constituted an undue burden on abortion rights and facially violated patients' and physicians' free speech rights, while other provisions were unconstitutionally vague. In particular, Planned Parenthood objected to a mandatory warning that women who have abortion are more likely to commit suicide.

A district court enjoined the provision, and an Eighth Circuit Court of Appeals panel upheld the injunction. The governor and attorney general of South Dakota, along with two crisis pregnancy centers and their personnel, appealed the district court's permanent injunction, as well as the underlying grant of summary judgment in favor of Planned Parenthood that the advisory would unduly burden abortion rights and would violate physicians' First Amendment right to be free from compelled speech.

The Eighth Circuit Court of Appeals noted that, in order for Planned Parenthood to succeed on either its undue burden or compelled speech claims, it had to show that the disclosure at issue "is either untruthful, misleading or not relevant to the patient's decision to have an abortion." The appellate court concluded that Planned Parenthood had not met its burden of proof.

Since it's an election year, you should prepare to hear a lot more about this decision, how it compares to the recent Fifth Circuit rulings on the Texas sonogram bill and Planned Parenthood funding, and how other Eighth Circuit states might rely on this case when amending their own informed consent laws.

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