8th Circuit Court Affirms Informed Consent Re: Abortion and Suicide

In a landmark decision on July 24, the US Court of Appeals for the Eighth Circuit upheld South Dakota’s “suicide advisory,” which is part of its informed consent for abortion law. The vote was 7 to 4. This is one of the most significant federal court decisions on the risks to women since the 1973 Roe v. Wade decision legalizing abortion. The next step would be a possible Supreme Court appeal by Planned Parenthood.

Along with last January’s decision by the US Court of Appeals for the Fifth Circuit upholding the Texas ultrasound law, these are 2 landmark decisions and legal body blows to the abortion industry in 2012

Important comments regarding the decision follow:

In conclusion, we hold that the requirements of S.D.C.L. § 34-23A-10.1(1)(e)(ii) are satisfied by a disclosure that the relative risk of suicide and suicide ideation is higher for women who abort compared to women in other relevant groups, as described in the relevant medical research. The statute does not require the physician to disclose that a causal link between abortion and suicide has been proved. The disclosure is truthful, as evidenced by a multitude of studies published in peer-reviewed medical journals that found an increased risk of suicide for women who had received abortions compared to women who gave birth, miscarried, or never became pregnant. Various studies found this correlation to hold even when controlling for the effects of other potential causal factors for suicide, including pre-existing depression, anxiety, suicide ideation, childhood sexual abuse, physical abuse, child neuroticism, and low self-esteem….

Moreover, the suicide advisory is non-misleading and relevant to the patient’s decision to have an abortion, as required by Casey. It is a typical medical practice to inform patients of statistically significant
risks that have been associated with a procedure through medical research, even if causation has not been proved definitively….

On its face, the suicide advisory presents neither an undue burden on abortion rights nor a violation of physicians’ free speech rights. Accordingly, we reverse the district court’s grant of summary… and vacate the permanent injunction against the enforcement of that provision.

Very significant is the Court’s overwhelming acceptance of the medical literature demonstrating a link between abortion and suicide. The Court stated that the studies submitted by South Dakota “are sufficiently reliable to support the truth of the proposition that the relative risk of suicide and suicide ideation is higher for women who abort their pregnancies compared to women who give birth or have not become pregnant,” and that this risk is “generally ‘known.’” No longer can Planned Parenthood ignore the plethora of medical evidence mounting against it.

Similarly, the Court also acknowledged that the standard medical practice is to recognize a strongly correlated adverse effect as a “risk” while further studies are conducted to clarify whether various underlying factors play causal roles. This turned Planned Parenthood’s practice on its head; typically, Planned Parenthood argues for courts to take the opposite approach and not consider anything a “risk” of abortion unless “proven” by Planned Parenthood-approved sources. The Court also described at length the potential methodological flaws in a report by the American Psychological Association, which illegitimately refuted the link between abortion and suicide.

Overall, the opinion contains a wealth of significant holdings which will work to protect women in South Dakota, the Eighth Circuit, and potentially beyond. The Eighth Circuit has started to pull the veil off the abortion industry’s dirty little secret: that abortion harms women.

The decision (pdf, 222KB)