Misinformed Consent: Upholding the Constitutionality of South Dakota's Suicide Advisory in Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds

Abstract: On July 24, 2012, in Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, the U.S. Court of Appeals for the Eighth Circuit, sitting en banc, considered the constitutionality of a suicide advisory portion of a South Dakota statute that required informed consent for abortions. The Eight Circuit found the advisory was constitutional because the information disclosures required by the statute were truthful, nonmisleading, and relevant to the patient's decision to have an abortion. The court relied in part on the Supreme Court's 2007 decision Gonzales v. Carhart, which held that Congress has the authority to legislate in the abortion context, even in areas of medical uncertainty. The Eighth Circuit, however, misapplied the reasoning of Gonzales and dangerously minimized the standard for scientific evidence in informed consent laws.IntroductionPlanned Parenthood of Minnesota, North Dakota, and South Dakota, and its medical director (Planned Parenthood) sued the state of South Dakota to prevent a 2005 statute amending the state's requirements for obtaining informed consent to an abortion from taking effect. 1 The statute required physicians to provide certain information to patients, including a written statement telling the pregnant woman that undergoing an abortion would subject her to an "[i]ncreased risk of suicide ideation and suicide" ("the suicide advisory").2 Planned Parenthood argued that the suicide advisory requires physicians to disclose to patients an untrue and misleading causal link between abortion and suicide.3 Planned Parenthood contended that this requirement imposes an undue burden on the right to obtain an abortion and violates the free speech rights of physicians.4On appeal, the U.S. Court of Appeals for the Eighth Circuit upheld the constitutionality of the suicide advisory.5 The Eighth Circuit relied in part on the reasoning in the Supreme Court's 2007 decision Gonzales v. Carhart, which held that Congress had the authority to enact a law banning certain abortion procedures, despite medical uncertainty over whether the law would impose significant health risks on women.6 Citing this reasoning, the Eight Circuit found that the South Dakota legislature had the authority to require the disclosure of increased risk of suicide, regardless of "'medical and scientific uncertainty'" as to whether abortion causes suicide.7I. South Dakota's Informed Consent Statute and Planned Parenthood's LawsuitIn 1993, South Dakota enacted a law requiring physicians to obtain voluntary and informed consent from all patients seeking abortions, except in medical emergencies.8 The informed consent provision requires physicians to disclose to the patient "the medical risks associated with abortion and with carrying [the] child to term . . . ."9 In 2005, the State enacted House Bill 1166 ("the Act"), which amended the 1993 statute.10 The Act expanded the disclosure requirements that doctors must provide to patients when obtaining informed consent to an abortion. 11 The new disclosure provisions required doctors to explain the biological effects of an abortion "on a whole, separate . . . living human being" and to give "[a] description of all known medical risks of the procedure and statistically significant risk factors to which [the woman] would be subjected, including . . . [i]ncreased risk of suicide ideation and suicide . . . ."12In June of 2005, Planned Parenthood and its medical director, Dr. Carol E. Ball, sued South Dakota to prevent the Act from taking effect, claiming that portions of the Act were unconstitutionally vague.13 Additionally, Planned Parenthood argued that several provisions of the Act, including the suicide advisory, constituted an undue burden on abortion rights and violated patients' and physicians' free speech rights.14 In response, South Dakota contended that the Act protects the due process liberty interests of women seeking abortions and ensures that these patients "fully appreciate[] the nature of the procedure and all of its risks to both herself and her child. …