Eighth Circuit Strikes Down Much of South Dakota Anti-Abortion Law

In the latest blow to a line of state laws attempting to discourage women from having an abortion, the U.S. Court of Appeals for the Eighth Circuit struck down much of a South Dakota law requiring doctors to provide women seeking an abortion with a series of scientifically questionable claims about abortion, and the court defanged another provision that appears designed to conscript doctors as anti-abortion propagandists. Under the law as written:

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 . . . .

(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 . . . .

The advisory must further contain “[a] description of all known medical risks of the procedure” (the risk advisory). That description must include “[i]ncreased risk of suicide ideation and suicide” as a known risk of abortion.

The court struck down the suicide instruction after a lengthy discussion of how it has little if any basis in science. “By compelling untruthful and misleading speech,” the court explained, “the advisory also violates doctors’ First Amendment right to be free from compelled speech that is untruthful, misleading, or irrelevant.” For this reason, the Eighth Circuit decision closely maps a decision earlier this week which struck down a similar Texas law forcing doctors to engage in anti-abortion advocacy.

The most intriguing portion of the opinion, however, is how the court handled the bizarre requirement that doctors tell their patients that abortion will terminate her “existing constitutional rights” with regards to her relationship with the fetus. At oral argument, the state argued that this provision “can be taken to mean that the Constitution protects a woman from being forced to have an abortion,” so the court held them to that word. Under the Eighth Circuit’s decision, the Court held that the law merely “requires a statement that the woman seeking abortion is legally and constitutionally protected against being forced to have an abortion.”

Because a previous Eighth Circuit decision upheld the even more bizarre language about “the life of a whole, separate, unique, living human being,” that provision of the law is still in effect.