Appeals Court Upholds South Dakota Abortion Law

The panel strikes down a suicide risk claim, but supports informed consent requirement

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Just in time for the incipient presidential primary season, a federal court decision shoves abortion rights - and the states' ability to limit them - back into the spotlight. The 8th Circuit Court of Appeals overturned a lower court Friday, and found constitutional a South Dakota law requiring that a pregnant woman be told she has an "existing relationship" with her fetus before going through with an abortion.

The court struck down one provision of the 2005 that required doctors to tell women that those who have had pregnancies aborted are more likely to commit suicide, a claim for which the court found no supporting evidence.

U.S. District Judge Karen Schreier ruled two ruled years ago that the law was unconstitutional. The state law mandates that an abortion provider tell a woman seeking an abortion that she "has 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."

Schreier found that wording misleading, the Associated Press reported, "because she said a relationship, in the eyes of the law, can only exist between people and the US Supreme Court has ruled that the unborn are not legally considered people."

The appeals court disagreed with Schreier’s reasoning, agreeing with the state’s argument that doctors would be providing patients with valid legal advice - that they cannot be compelled to have an abortion - allowing patients to make more informed decisions.

Most surprising was the immediate reaction of two diametrically opposed interest groups, opponents and proponents of abortion rights. Both camps said they were encouraged by the ruling.

From the Associated Press:

Mimi Liu, an attorney for Planned Parenthood, said the group believes the court has ruled that doctors must only inform patients of that one sentence written in the appeals court’s decision.

“We think this decision can be read to say that is all that is required,’’ she said.

Leslee Unruh, the founder of the Alpha Center pregnancy counseling center in Sioux Falls, which seeks to persuade women not to seek abortions, called the decision regarding the existing relationship advisory "monumental."

But for supporters of abortion rights, the ruling contains cause for concern. The South Dakota abortion law has been imitated in other states, and the appellate court ruling offers it a greater chance of being fully enacted for the first time. The statute had been stayed since its passage, pending the court challenge. 

From Reuters:


South Dakota was the first state to have what is sometimes called an informed consent law, according to Elizabeth Nash, public policy associate at the Guttmacher Institute, which studies reproductive health issues. The South Dakota law is the most expansive, but it has been imitated in part in other states including North Dakota, Missouri, Kansas and Indiana, Nash said.

"This law really isn't about health and safety, it's really about forcibly trying to dissuade a woman from getting an abortion any way the state can," Nash said.

This article is from the archive of our partner The Wire.