Bench Memos

Eighth Circuit Upholds SD Abortion Law

In 2005 South Dakota legislators passed, and Governor Mike Rounds, signed into law, an abortion consent bill.  The law required a physician performing an abortion to secure the woman’s informed consent, which consent had to include (among other information) that “the abortion will terminate the life of a whole, separate, unique, living human being,” with which the woman “has an existing relationship” that “enjoys protection under the ” constitutions of the United States and South Dakota.   Before the law could take effect a federal district judge enjoined its enforcement.  The court accepted some abortion doctors’ argument that they would be made involuntary conduits of a message which was not only not their own, but the state’s “viewpoint” on an “unsettled medical, philosophical, theological, and scientific issue, that is, whether the fetus is a human being.”  A divided three-judge panel of the Eighth Circuit upheld the injunction.  But late last week that court, sitting en banc, reversed the panel decision and upheld the challenged law. 

The most important part of last week’s opinion is the court’s two-fold rejection of the District Judge’s “unsettled” position.  The Eighth Circuit rejected the claim that the required information was “theological” or even “philosophical” in nature.  The court said instead that it was “biological”  — that is, scientific and medical.  The Court further held that the “biological” information was settled enough to be made a required part of informed consent.  And there was an end to it.

The moving force behind the SD law and throughout the subsequent litigation has been the stalwart pro-life attorney, Harold Cassidy of New Jersey


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