Yesterday, the 8th Circuit Court of Appeals ruled that the suicide advisory provision of South Dakota’s abortion law is constitutional, voting 7–4 to reverse a decision by a three-judge panel. The law requires doctors to tell patients seeking an abortion that there is a link between abortions and depression and other psychological distress including suicide.
The 8th Circuit decided that, despite the fact that the link between abortion and suicide is unproven and may not exist, the South Dakota law does not unduly burden abortion rights or violate the free speech rights of doctors:
The appeals court ruled on Tuesday that conclusive proof of a causation was not required and the suicide advisory was not misleading and was relevant to the patient’s decision.
“Today’s decision supports the Legislature’s goal of encouraging women seeking an abortion to make informed and voluntary decisions,” South Dakota Attorney General Marty Jackley said in a statement.
But abortion rights supporters disagree. Sarah Stoesz, president of Planned Parenthood Minnesota, North Dakota, South Dakota, called the ruling “the greatest intrusion by the government into the patient-doctor relationship to date.” Planned Parenthood is the only abortion provider in South Dakota:
“Every reputable researcher and medical organization has determined that there is no sound scientific evidence that shows a cause and effect relationship between abortion and suicide,” said Sarah Stoesz, president and CEO of PPMNS, in a statement. “This law, upheld by the court today, is just one of many reprehensible barriers that South Dakota politicians are determined to impose on women seeking safe and legal health care.”
The four dissenting judges argued that the most reliable evidence presented shows that there is no causal relationship between abortion and suicide and determined that the suicide advisory violates patient’s due process rights and doctor’s free speech rights.
What will happen if the case is appealed and heard in the U.S. Supreme Court is an open question. In Gonzales v. Carhart, the court’s most recent abortion decision, Justice Anthony Kennedy, writing for the majority, relied on paternalistic reasoning to uphold a ban on partial-birth abortions. Kennedy fretted about the mental health risks of abortion, noting that “some women come to regret their choice to abort the infant life they once created and sustained.” Kennedy’s decision resulted in a variety of state laws aimed at restricting or eliminating abortion rights in the guise of protecting women. In fact, abortion rights supporters are so wary of the risk of challenging unconstitutional abortion restrictions and losing at the Supreme Court that they have opted not to challenge many of them.