Skip to main content

Eighth Circuit Upholds South Dakota's Informed Consent Law

By Robyn Hagan Cain on September 07, 2011 | Last updated on March 21, 2019

The Eighth Circuit Court of Appeals last week upheld a South Dakota informed consent law that requires an abortion provider to inform a pregnant patient about her “existing relationship” with an “unborn human being.”

The case stems from a Planned Parenthood challenge to a 2005 South Dakota Public Health and Safety Code amendment expanding the requirements for informed consent to abortion. Under the law, a doctor must give a woman contemplating abortion oral advisories 24 hours before the procedure and written advisories at least 2 hours before the procedure.

In addition to providing the patient with information about known medical risks and increased risk of suicide and suicidal thoughts, the written advisories inform the patient that:

  • The abortion will terminate the life of a whole, separate, unique, living human being.
  • [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.
  • By having an abortion, [the patient's] existing relationship and her existing constitutional rights with regards to that relationship will be terminated.

In a 2005 challenge, a federal 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. Planned Parenthood, however, continued to challenge the "existing relationship" provision on its face.

The facial challenge is important here because facial challenges to abortion statutes can succeed only if a plaintiff can show that "in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion."

The Eighth Circuit Court of Appeals adopted South Dakota's interpretation of the "existing relationship" provision, finding that the state merely requires a statement that the woman seeking abortion is legally and constitutionally protected against being forced to have an abortion. As that interpretation conveys legal information that is truthful and relevant to the abortion decision, the Eighth Circuit upheld the provision.

How do you feel about this decision? Do you agree with the Baptist Press that the Eighth Circuit "rightly determined that it's perfectly constitutional to inform women of an undisputed biological fact," or do you think that the RH Reality Check correctly described this law as "deliberately mandating misinformation?"

Related Resources:

Copied to clipboard