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A New Approach to Informed Consent

in South Dakota

 Ana Brennan, J.D.  |  02 September 2021

In Planned Parenthood v. Casey[1] the U.S. Supreme Court upheld the informed consent provision of Pennsylvania’s Abortion Control Act.[2] Most of us are familiar with the importance of informed consent in the context of abortion. Since Casey, many states have modeled their informed consent laws after Pennsylvania. This legal strategy makes perfect sense. It is a good indicator of success if a law is modeled after one that has already been upheld. Informed consent laws help protect women from the unscrupulous abortion industry and save unborn babies; of course, we want informed consent laws, but Casey was almost 30 years ago.

 

Under typical informed consent laws, the abortionist must provide or direct someone else to provide the pregnant woman with information. For example, per Casey, a pregnant woman must be told about risks and alternatives, the age of her unborn child, informed that the state provides printed material[3] that describes fetal development, information regarding available medical assistance benefits, and so on.[4]

 

In 2011, South Dakota passed a novel provision in their informed consent law, expanding on the Casey template. In an effort to increase the protection of women and their unborn children, South Dakota requires a pregnant woman to also consult with a state-registered pregnancy help center. The purpose of the consultation is very limited. The primary purpose of this provision is to ensure the pregnant woman is not being coerced into having an abortion. Coercion can come from anyone, including the abortionist and employees at the abortion clinic.

 

The pertinent parts of the South Dakota Code include:

 

34-23A-56. Scheduling of abortion--Prior requirements.

…During the initial consultation between the physician and the pregnant mother, prior to scheduling a surgical or medical abortion, the physician shall:

***

(3)    Provide the pregnant mother with the names, addresses, and telephone numbers of all pregnancy help centers that are registered with the South Dakota Department of Health pursuant to §§ 34-23A-53 to 34-23A-62, inclusive, and provide her with written instructions that set forth the following:

(a)    That prior to the day of any scheduled abortion the pregnant mother must have a consultation at a pregnancy help center at which the pregnancy help center shall inform her about what education, counseling, and other assistance is available to help the pregnant mother keep and care for her child, and have a private interview to discuss her circumstances that may subject her decision to coercion;[5]

 

 

I am including a significant portion of the South Dakota law that outlines what a pregnancy help center can and cannot do under this statute. The following provisions address objections raised by abortion advocates that will be discussed below.

 

34-23A-59. Pregnancy help center consultations.

A pregnancy help center consultation required by §§ 34-23A-53 to 34-23A-59.2, inclusive, shall be implemented as follows:

(1)    The pregnancy help center shall be permitted to:

(a)    Interview the pregnant mother to determine whether the pregnant mother has been subject to any coercion to have an abortion, or is being pressured into having an abortion;

(b)    Provide counseling in connection with any coercion or pressure;

(c)    Inform the pregnant mother in writing or orally, or both, of the counseling, education, and assistance available to the pregnant mother to assist her in maintaining her relationship with her unborn child and in caring for the child through the pregnancy help center or any other organization, faith-based program, or governmental program;

***

(2)    The pregnancy help center, its agents, or employees may not:

 

***

(b)    Discuss the physical or psychological risks to a woman posed by an abortion. However, if, during the mandatory pregnancy help center consultation interview, the pregnant mother requests the opportunity to discuss the risks of an abortion with pregnancy help center personnel, the pregnancy help center may schedule a separate and distinct appointment for the pregnant mother to meet with a physician for the purpose of discussing the physical and psychological risks of abortion. Any requests shall be evidenced in writing signed by the pregnant mother;

 

(3)     …The physician shall make the physician's own independent determination whether or not a pregnant mother's consent to have an abortion is voluntary, uncoerced, and informed before having the pregnant mother sign a consent to an abortion…  

 

(4)    Any written statement or summary of assessment prepared by the pregnancy help center as a result of counseling of a pregnant mother as a result of the procedures created by §§ 34-23A-53 to 34-23A-59.2, inclusive, may be forwarded by the pregnancy help center, in its discretion, to the abortion physician…Other than forwarding such documents to the abortion physician, no information obtained by the pregnancy help center from the pregnant mother may be released, without the written signed consent of the pregnant mother or unless the release is in accordance with federal, state, or local law;…[6]

 

Ten years ago, U.S. District Judge Karen Schreier issued a temporary injunction against the law. Over the past ten years, the South Dakota legislature attempted to make the language more palatable and sought relief from the initial temporary injunction. In August, Judge Schreier upheld her injunction claiming nothing had changed over the past ten years. According to the Judge, the law still infringed on a pregnant woman’s freedom of speech, created an undue burden to obtain an abortion, and raised privacy concerns.

 

South Dakota plans to appeal the decision to the Eighth Circuit Court of Appeals.

 

Free Speech

Judge Schreier puts a lot of emphasis on the word "interview" in the statute. She contends that to compel a pregnant woman to engage in an interview is to compel speech. The purpose of the interview is to ascertain if the pregnant woman is being coerced. Providing a pregnant woman the opportunity to avoid being coerced into an abortion does not implicate the First Amendment.

One statement by Judge Schreier is very telling, “A pregnancy help center counselor enters an interview with a pregnant woman under the paternalistic assumption that the woman has not yet decided to seek an abortion of her own volition.” This statement is precisely why the pregnancy help center consult is needed. What kind of help is a pregnant woman receiving at a "reproductive health" clinic if it is presumed from the moment she walks in the door that she wants an abortion? What kind of choice is she given?  The abortion industry really is about selling abortion, not "reproductive health care." It is easy to understand why abortion advocates oppose giving a pregnant woman the opportunity to express any doubt about having an abortion.

 

Privacy

There is concern that a pregnant woman must divulge her situation and personal information to the pregnancy help center. The informed consent process already requires all this information be given to the abortion clinic. The statute also has provisions and penalties regarding illegally divulging patient information.

 

Undue Burden

Whole Woman's Health v. Hellerstedt[7] (2016) starts with applying the undue burden standard articulated in Casey and further clarifies what the 'undue burden' test requires. “[A] statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends." Casey, 505 U. S., at 877 (plurality opinion). Moreover, "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right."[8]

The 2020 June Medical Services, LLC v. Russo[9] further elaborated on the undue burden standard. "[T]his standard requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law’s “asserted benefits against the burdens” it imposes on abortion access. 579 U.S., at ___(slip op., at 21) (citing Gonzales v. Carhart, 550 U. S. 124, 165 (2007))." 

 

What does all this mean for the South Dakota informed consent statute? It is difficult to say. On the one hand, informed consent statutes are generally considered constitutional. Whether the additional requirement will be regarded as something consistent with informed consent in general or the additional language creates an undue burden remains to be seen. Currently, South Dakota has a 72-hour waiting period and requires an abortionist to provide information consistent with informed consent laws that have been upheld. The pregnancy help center consultation does not postpone the abortion because a pregnant woman must wait three days anyway. The state already requires that the abortionist give the pregnant woman information. The pregnancy help center consult just requires obtaining information from a different party.

 

It is difficult to predict how the undue burden standard will be applied to this novel approach. This case is definitely one to watch as it moves through the courts.

 

___________________

[1] Planned Parenthood v. Casey505 U.S. 833 (1992)

[2] Title 18 - PA General Assembly (state.pa.us) Chapter 32 §3205

[3] Abortion - Making a Decision.pdf (pa.gov)

[4] Title 18 - PA General Assembly (state.pa.us) Chapter 32 §3205(a)(1-3)

[5] SDLRC - Codified Law 34-23A-56 (sdlegislature.gov)

[6] SDLRC - Codified Law 34-23A-59 (sdlegislature.gov)

[7] Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016)

[8] Id. at 878

[9] June Medical Services, LLC v. Russo, 591 U.S. ___ (2020)

Ana Brennan, J.D.

Vice President, Society of St. Sebastian 

Senior Editor, Journal for Bioethics in Law & Culture