Attorney General Headshot

Attorney General Marty Jackley

Attorney General Seal

Federal Court of Appeals Grants S.D’s Request to Address 2005 Abortion Disclosure Requirement

  Tuesday, December 6, 2011   
CONTACT: Sara Rabern,  (605) 773-3215


Federal Court of Appeals Grants South Dakota’s Request to Address 2005 Abortion Disclosure Requirements

PIERRE, S.D.  - Attorney General Marty Jackley has announced that the Eighth Circuit Court of Appeals has granted a January 2012 rehearing of the entire eleven-member Court with regard to abortion disclosure requirements adopted by the legislature in 2005.   The full Court will address the validity of the legislative requirement that women considering an abortion be advised of the association of suicide in relation to abortion.     

In 2005, South Dakota enacted HB 1166 expanding the requirements for informed consent to abortions occurring in South Dakota.  The bill requires, among other matters, that a woman seeking a lawful abortion be advised of the following:

1. That the abortion will terminate the life of a whole, separate, unique, living human being in a scientific sense (human being disclosure);

2. That the patient has an existing relationship with that unborn human being protected by law,  which will be terminated by having an abortion (collectively relationship advisories);

3. A description of all known medical risks of the abortion procedure including the increased risk of suicide (collectively medical risk disclosure).

Before the Act was scheduled to take effect in 2005, Planned Parenthood brought a constitutional challenge under the First and Fourteenth Amendments.  The District Court ruled in favor of Planned Parenthood in terminating the intervention of the pregnancy health centers in the litigation, and enjoined the 2005 Act from taking effect.
In Planned Parenthood v. Alpha Center (Rounds I),[1] the Eighth Circuit reversed the District Court’s decision and allowed the pregnancy help centers to intervene.  In Planned Parenthood v. Rounds (II),[2]  the en banc Eighth Circuit Court of Appeals reversed the District Court’s granting of the preliminary injunction, holding that the required human being disclosure did not violate the First Amendment.  The Eighth Circuit vacated the preliminary injunction and remanded to the District Court for resolution of Planned Parenthood’s additional challenges to the 2005 statutory scheme.
On remand from the Eighth Circuit, the District Court granted summary judgment in favor of South Dakota on the human being disclosure.   However, the District Court ruled in favor of Planned Parenthood and again enjoined enforcement of the relationship advisories and the suicide risk disclosure.
In the Planned Parenthood v. Rounds (III), [3] September 2, 2011 decision, the Eighth Circuit Court held that “Planned Parenthood has not demonstrated that the human being advisory would present an undue burden,” and upheld those advisories.  As to the relationship advisories, the Eighth Circuit concluded “we adopt the reasonable readings South Dakota proposes and hold that § 7 requires a statement that the woman seeking abortion is legally and constitutionally protected against being forced to have an abortion.  Since no one can require her to have an abortion, this reading conveys legal information that is truthful, not misleading, and relevant to the abortion decision.”  The Eighth Circuit went on to conclude that the relationship advisories are constitutional.
The Rounds III Court further upheld the requirements that doctors disclose “all known medical risks” of abortion.   However, the Court concluded, in the face of a strong dissent, that the disclosure regarding increased risk of suicide as written violated the Constitution. The State argued that the evidence demonstrated that suicide was three to six times more frequent after abortion as compared to childbirth. The Eighth Circuit noted that South Dakota common law already requires doctors to inform patients of all known material or significant risks of a medical procedure.  Thus, according to the panel of the Court, if a doctor considers suicide a known material risk of abortion, there already exists a common law duty to warn patients. The full Court will now reassess the validity of the legislative requirement that women be advised of the association of suicide in relation to abortion.

[1] Planned Parenthood v. Alpha Center, 213 Fed. Appx. 508 (8th Cir. 2007)
[2] Planned Parenthood v. Rounds (II), 530 F.3d 724 (8th Cir. 2008) (en banc)

[3] Planned Parenthood v. Rounds (III), 653 F.3d 662 (8th Cir. 2011)