WASHINGTON, August 22, 2012 — Abortion has heated up again as a topic of presidential politics. Incendiary comments and campaign promises to outlaw abortion have flooded the airwaves. However, despite Todd Akin’s controversial comments and Mitt Romney’s position on the issue, which for now have no real impact on abortion law, pro-life judges and legislatures have quietly changed state laws to hamper that choice.
Last month’s ruling in Planned Parenthood v. Rounds by the Eighth U.S. Circuit Court of Appeals reflects how anti-abortion judges and legislators are trying to erode a woman’s right to choose. The court’s en banc decision exposes the conservative strategy of weakening the rights and protections given to women in Roe v. Wade.
In Planned Parenthood v. Rounds, the court declared constitutional a South Dakota law that requires physicians to inform a woman seeking an abortion that “an increased risk of suicide ideation and suicide” is among the “known medical risks of the procedure and statistically significant risk factors to which a pregnant woman would be subjected.” The advisory is necessary to obtain the woman’s informed consent before whe obtains an abortion in the state.
However, there is no scientific proof that abortion causes suicide. There is a correlation among women who get abortions and women who commit suicide, but available research suggests that suicide is caused by underlying psychological factors — not the decision to have an abortion.
The South Dakota law should have been ruled unconstitutional by the court because it is misleading and infringes on a woman’s right to informed consent.
Under the United States Supreme Court’s ruling in Planned Parenthood v. Casey, a state may not require an advisory that unduly burdens a woman’s decision or does not “inform a woman’s free choice.” For informed consent to be constitutional and inform a woman’s free choice, it must be “truthful, non misleading, and relevant.”
The South Dakota law clearly fails in this respect. The advisory forces doctors to tell a woman that suicide is a “known medical risk of the procedure” and a “statistically significant risk factor to which a pregnant woman would be subjected” if she were to have an abortion. However, there is no scientific support for this assertion, making it misleading and untruthful.
Research shows that there is no causal relationship between abortion and suicide. Most evidence available to the court suggested that suicide is cause by underlying factors like domestic violence, abuse, mental illness, unwanted pregnancy, and youth at the time of pregnancy. Among the evidence presented to the court was a 2008 review on the available medical literature by the American Psychological Association (APA). The review concluded that “the relative risk of mental health problems among adult women who have unplanned pregnancies is no greater if they have an elective first-trimester abortion than if they deliver that pregnancy.” (Quoted in the dissent, p. 32).
The APA is not alone in being unable to find a causal link between abortion and suicide. The American College of Obstetricians and Gynecologists (ACOG) also shares this view and has given its opinion that abortion itself does not affect a woman’s mental health. The FDA seems to share this view as well. Under 21 C.F.R. §201.80(e), “labeling shall be revised to include a warning as soon as there is reasonable evidence of an association of a serious hazard with a drug; a causal relationship need not have been proved.” However, mifepristone, the abortion-inducing drug, does not contain any warning of suicide on the label and has not been revised to include such a warning.
Perhaps even more significantly, in 2012 the South Dakota legislature amended several abortion laws to reflect the concept that abortion does not cause suicide. For example, the legislature amended a law that mandated the doctor to perform an assessment to determine if the patient presented “any of the risk factors associated with abortion.” The newly written law, in contrast, mandates an assessment to determine whether the patient presents a list of “preexisting risk factors associated with adverse psychological outcomes following an abortion.” By changing the language of the statute, the South Dakota legislature recognizes that it is the preexisting factors and not the decision to have an abortion that presents an increased risk of suicide.
The South Dakota law also seems to fail in providing a woman with informed consent. For a patient to give her informed consent to a medical procedure, she must have an accurate understanding of the known risks involved as well as viable alternatives. Under Casey, the state has an interest in promoting a “wise,” “mature,” and “informed” choice when a woman considers undergoing an abortion. However, if a woman is incorrectly told that there is an increased risk of her committing suicide if she has an abortion, her choice will not be wise or informed. She will be actively misled, and her choice may be unduly influenced by the incorrect information.
So why did the circuit court uphold the South Dakota law? In accordance with Casey, the court ruled that a state-mandated advisory is constitutional if it is not misleading and it is true. The South Dakota law does not actually require doctors to tell patients that abortion causes a greater risk of suicide. Instead, the majority reasoned, the doctor is required to inform the woman that abortion is associated with suicide, and explain the difference between association and causation. Unfortunately, that is not the way the law is written. The Court stressed that while it was not proven that abortion causes a risk of suicide, it was still true that there is an association between them, therefore making the advisory truthful and constitutional.
The dissent points out that to overcome the problems with informed consent, the Eighth Circuit deviates from the well-established rule in Casey and spells out a new standard for informed consent advisories. Under the court’s new reasoning, if a causal link is theoretically possible, then an advisory referring to it is truthful, not misleading, and relevant as long as there is no scientifically accepted proof that a causal link does not in fact exist. In essence, the Court found the South Dakota advisory constitutional because a causal link between abortion and suicide is theoretically possible (despite proof to the contrary), and Planned Parenthood was unable to present compelling evidence disproving a causal link. Under this Court’s reasoning, to prove that the South Dakota advisory is misleading, Planned Parenthood would have to provide scientific evidence that abortion does not cause suicide, which many thought that it did.
And these constitutional violations are unlikely to be addressed any time soon. Michael C. Dorf’s analysis of the future of this case is insightful. According to Dorf, it is unlikely that the Supreme Court will correct the error because the plaintiffs are unlikely to seek review. If review is sought, the Supreme Court is unlikely to grant certiorari. Even if review is sought and certiorari is granted, it is easy to agree with Dorf that the current Supreme Court is unlikely to differ with the philosophy of the Eighth Circuit.
All this means that while Roe v. Wade still guarantees a woman’s right to choose to have an abortion, pro-life legislators and judges are nibbling around the edges, weakening the ruling, and ultimately they could erode a woman’s right to choose.
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