Federal Appeals Court Panel Blocks Enforcement Of South Dakota Abortion Counseling Law

A three-judge panel of the 8th Circuit U.S. Court of Appeals in St. Louis on Monday ruled 2-1 to bar enforcement of a 2005 South Dakota law (HB 1166) that seeks to require abortion providers in the state to tell women before performing the procedure that it would "terminate the life of a whole, separate, unique, living human being," the New York Times reports (Liptak, New York Times, 10/31). The law, which was signed by Gov. Mike Rounds (R) in March 2005 and was scheduled to take effect in July 2005, requires physicians to fully inform women about risks, consequences and alternatives to abortion, such as adoption, at least two hours before performing the procedure. The law also says that women have a relationship with the fetus until birth and that the state has an interest in protecting that relationship. Planned Parenthood of Minnesota-North Dakota-South Dakota in June 2005 filed suit requesting that the law be blocked because it violates doctors' free speech rights by requiring them to provide inaccurate and ideological information to women seeking abortion. U.S. District Judge Karen Schreier in July issued a temporary injunction blocking enforcement of the regulation and said the state cannot violate abortion providers' First Amendment rights by requiring them to "espouse the state's theology" (Kaiser Daily Women's Health Policy Report, 4/24). The 8th Circuit Court panel on Monday upheld Schreier's ruling and sent the case back to her for a final opinion.

Ruling
"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 Diana Murphy wrote in the majority opinion, which was joined by Judge Michael Melloy. According to the Times, Murphy also wrote that the law also might place an undue burden on access to abortion by requiring physicians to exchange written information and certify the patient understood it. Judge Raymond Gruender dissented in the case, writing that the requirement to disclose that abortion would "terminate the life of a whole, separate, unique, living human being" is a clear medical fact and an acceptable requirement under the Supreme Courts 1992 Planned Parenthood v. Casey decision. South Dakota Attorney General Larry Long (R) said he has not decided if he will appeal the panel's ruling to the full 8th Circuit Court. South Dakota voters next week will vote on a law that would ban nearly all abortions in the state (New York Times, 10/31).

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