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The 8th Circuit Court Okays South Dakota’s Political Interference in Women’s Personal Medical Decision-Making

Brigitte Amiri,
Deputy Director,
ACLU Reproductive Freedom Project
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June 30, 2008

The 700 or so women each year who have an abortion in South Dakota go to the only abortion clinic in the state, where one doctor performs abortions once a week (three different doctors rotate that shift). After last Friday's 8th Circuit Court decision in Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds (PDF), those three doctors are now forced, by law, to tell each of these women that “An abortion will terminate the life of a whole, separate, unique, living human being.” This restriction is just one more tactic that anti-choice forces have used to chip away at the constitutional right to abortion in what is already one of the most restricted states.

The ACLU believes that a woman needs medically accurate information to make the best choices for herself and her circumstances, without undue pressure. She should be able to trust that the advice she receives from her physician reflects what her physician believes is in her best interest, not something that her physician has been forced to say by the government.

Clearly those in the South Dakota legislature who voted to pass the law,and the 8th Circuit judges who voted to uphold it, disagree.

The law also forces a doctor to tell his or her patient that she “has an existing relationship with that unborn human being” and if she has an abortion, “her existing relationship and her existing constitutional rights with regards to that relationship will be terminated.”

The court's decision comes in the midst of a challenge to the law the South Dakota legislature passed in 2005 that requires a physician performing an abortion (those three rotating doctors at that one clinic that performs abortions one day per week) to recite to their patients all of those opinions masquerading as fact. The court determined that the law could go into effect while Planned Parenthood continues its challenge, and the court specifically said that it is unlikely that Planned Parenthood will succeed on its claim that the law violates doctors’ First Amendment rights by forcing them to deliver an ideologically-driven message with which they disagree.

If the law's language sounds like anti-choice rhetoric, it's because it was written by an anti-choice activist — the lawyer Harold J. Cassidy. He tried a similar tactic in New Jersey a few years ago by bringing a medical malpractice lawsuit against a physician who performed an abortion and who didn't tell his patients what those three rotating doctors in South Dakota are now forced to tell theirs: that abortion terminates the life of a separate, unique human being.

Last September the New Jersey Supreme Court — in a unanimous decision — threw out the case, noting:

We know of no common law duty requiring a physician to instruct the woman that the embryo is an ‘existing human being,’ and suggesting that an abortion is tantamount to murder.There is not even remotely a consensus among New Jersey’s medical community or citizenry that plaintiff’s assertions are medical facts, as opposed to firmly held, moral philosophical and religious beliefs.

A similar case is pending in Chicago.

Women's heath is best promoted when a woman has the information and access to make healthy life decisions based on her own values and her own unique circumstances. Ensuring this principle means stopping anti-choice activists like Cassidy and South Dakota's lawmakers from playing politics with our lives.

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