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Informed Consent Required of Abortion Providers; 8th District Court of Appeals


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May 3, 2011
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Abortion Providers ordered to follow disputed 'informed consent' law
plus Inform Patients of risks, crisis intervention contacts, and the like.

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Nos. 09-3231/3233/3362
Filed: September 02, 2011

The written advisories required by § 7(1) are to inform the patient

(b) That the abortion will terminate the life of a whole, separate,
unique, living human being [the human being advisory];
(c) That [the patient] has an existing relationship with that unborn
human being and that the relationship enjoys protection under the
United States Constitution and under the laws of South Dakota;
(d) That by having an abortion, her existing relationship and her
existing constitutional rights with regards to that relationship will
be terminated [collectively the relationship advisories].

S.D.C.L. § 34-23A-10.1(1)(b)–(d). The advisory must further contain "[a] description
of all known medical risks of the procedure" (the risk advisory). Id. § 34-23A-
10.1(1)(e). That description must include "ncreased risk of suicide ideation and
suicide" as a known risk of abortion (the suicide advisory). Id. § 34-23A-
10.1(1)(e)(ii). The Act also requires doctors to provide patients with the name,
address, and telephone number of a nearby crisis pregnancy center twenty four hours
before the scheduled procedure. Id. § 34-23A-10.1(2)(c).4
After the patient has read the written portion of the required communications,
§ 7 requires that she sign each page of the statement verifying that she has understood
all the information provided. Id. § 34-23A-10.1(1) ¶ 2. If she asks about any of the
required advisories or has any other significant question, the doctor must respond in
writing. Id. That response becomes part of the patient's permanent medical record.
Id. Once all of the required communications have been made, the doctor must certify
that the patient “understands the information imparted.” Id. A doctor who performs
an abortion without meeting these requirements is subject to criminal prosecution. Id.
§ 34-23A-10.2 ¶ 1.
Before the Act was scheduled to take effect in 2005, Planned Parenthood
brought its facial challenge to the constitutionality of the statute under the First and
Fourteenth Amendments. It moved for a preliminary injunction enjoining its
enforcement. The district court held in Planned Parenthood Minnesota, North Dakota,
South Dakota v. Rounds, 375 F. Supp. 2d 881(D.S.D. 2005), that the human being
advisory violated doctors' First Amendment rights on its face and that invalidation of
any portion of the Act required injunctive relief. While a divided panel of this court
affirmed, 467 F.3d 716 (2006), its decision was overturned by the en banc court which
reversed, holding that the required human being advisory did not on its face violate
the First Amendment. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d
724, 735–36 (8th Cir. 2008) (en banc). It vacated the preliminary injunction and
remanded to the district court for resolution of Planned Parenthood's other facial
challenges to the Act. Id. at 738.
On remand South Dakota and the intervenors moved for summary judgment in
their favor as to the human being advisory, the relationship advisories, the suicide
advisory, and the risk advisory. Planned Parenthood in turn moved for summary
judgment in its favor as to the latter three provisions, as well as two others not at issue
on appeal. The district court granted summary judgment in favor of South Dakota on
the human being and risk advisories and in favor of Planned Parenthood on the
relationship and suicide advisories. South Dakota and the intervenors5 now appeal the
rulings in Planned Parenthood's favor, and Planned Parenthood cross appeals the
rulings in South Dakota's favor.

More at 33 Page PDF Opinion
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