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Attorney General Marty Jackley

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Final Provision of South Dakota 2005 Abortion Disclosure Legislation Upheld

FOR IMMEDIATE RELEASE :     Tuesday, July 24, 2012  
CONTACT:    Sara Rabern,  (605) 773-3215 

Final Provision of South Dakota 2005 Abortion Disclosure Legislation Upheld

PIERRE, S.D -   Attorney General Marty Jackley announced today that the en banc Court of Appeals for the Eighth Circuit has upheld a provision of a 2005 statute which requires that a woman considering an abortion be given an advisory that the risk of suicide and suicide ideation is higher among women who abort than those in other relevant groups, such as those who give birth.

“Today’s decision supports the Legislature’s goal of encouraging women seeking an abortion to make informed and voluntary decisions,” said Jackley.  “This decision will provide further guidance and direction with respect to Planned Parenthood’s challenge to the 2011-2012 legislation which establishes procedures to ensure that abortion decisions are voluntary and uncoerced.” 

A majority of the eleven-member Court found that the required advisory was truthful in that the State had submitted numerous studies in respected, peer reviewed medical journals which demonstrated the correlation between suicide and suicide ideation and abortion. One major study cited by the Court, for example, showed a suicide rate after abortion of 31.9 per 100,000 as compared to a suicide rate after live birth of 5 per 100,000.  

The Court rejected the claim of Planned Parenthood that the statute required that the advisory be given only if causation, rather than correlation, were shown. Finally, the Court found that the physicians who provide abortions should be capable of explaining the difference between relevant risk and proof of causation to their patients. Five judges joined in the principal opinion, two judges concurred with the opinion, and four dissented.

Attorney General Jackley said that the decision by the en banc Court of Appeals likely brings to an end the battle commenced by Planned Parenthood  over South Dakota’s 2005 abortion legislation. Another portion of the Act, that requiring a disclosure that the fetus was a “human being” within the meaning of science, was upheld by the en banc court in 2008. Except for a single phrase, the remainder of the remainder of the statue was upheld in a decision of a panel of the Court of Appeals 2011. 

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.   In late 2011, the en banc Court of Appeals vacated the decision in Rounds III.   Today’s decision reverses the decision of the district court with regard to the suicide and suicide ideation advisories, finding them both truthful and non-misleading.   Almost all of the 2005 abortion related legislation has therefore been upheld by the Eighth Circuit.
[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)