South Dakota: Tell Women of "Relationship" with Fetus Before Abortion

| by Baptist Press

WASHINGTON -- A pregnant woman considering abortion in South Dakota must be informed she "has an existing relationship with that unborn human being," a federal appeals court has ruled.

In its opinion, the Eighth Circuit Court of Appeals in St. Louis, Mo., overturned a federal judge's decision that had struck down the "relationship advisories" section of South Dakota's 2005 informed consent law. The law's supporters, however, fell short of a complete victory in the opinion by the three-judge panel. In a 2-1 split decision, the judges upheld the lower court's invalidation of a section requiring women to be informed of the risk of suicide from abortion. The dissenting judge said he would have upheld the entire law, including that requirement.

The Eighth Circuit's Sept. 2 ruling in support of a state's right to inform a woman she has a relationship with the child living in her womb was a victory for pro-life advocates not only in providing full information for pregnant women but in establishing protection for unborn children.

"Planned Parenthood and other proponents of death work diligently to restrict the information mothers have about abortion and the life within them," said Steven Aden, senior counsel of the Alliance Defense Fund, which filed a friend-of-the-court brief backing the state law. "It was incredible for the lower court to have determined that the law cannot acknowledge that a 'pregnant woman has an existing relationship with that unborn human being' because some human beings are somehow not 'persons.'"

The Eighth Circuit "rightly determined that it's perfectly constitutional to inform women of an undisputed biological fact," Aden said in the written statement.

South Dakota pro-life leader Leslee Unruh praised the decision. 

"I can't remember a day being this happy in the 27 years of doing this work," she said, according to The Sioux Falls (S.D.) Argus Leader. Unruh founded the Alpha Center, a Sioux Falls pregnancy help center.

Planned Parenthood, which operates the state's only abortion clinic in Sioux Falls, challenged the 2005 law, which required an abortion provider to inform a woman the procedure "will terminate the life of a whole, separate, unique, living human being." The measure also included the "relationship advisories" and risk-of-suicide provision.

The "relationship advisories" came in two parts, with a woman being informed: (1) "That [the patient] has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota;" (2) "[t]hat by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated."

In 2009, federal judge Karen Schreier upheld the "human being" advisory but struck down the "relationship advisories" and risk-of-suicide requirement. Regarding the relationship section, Schreier wrote, "A legal relationship requires two people. The United States Constitution does not recognize an unborn embryo or fetus as a 'person,' in the legal sense."

The Eighth Circuit panel, however, agreed with the state's reading of the law on the relationship between a mother and her unborn child in rejecting Schreier's opinion. 

The panel adopts the view that the law "requires a statement that the woman seeking abortion is legally and constitutionally protected against being forced to have an abortion," the judges said. "Since no one can require her to have an abortion, this reading conveys legal information that is truthful, not misleading, and relevant to the abortion decision." 

South Dakota enacted an even stronger informed consent law in March, but Schreier handed it at least a temporary setback in June. The new law requires a woman to visit a pregnancy help center for counseling and wait 72 hours before having an abortion. In blocking its implementation, Schreier ruled the law was an undue burden on women in a state that has only one abortion clinic.

Voting in the majority were Judges Diane E. Murphy, a nominee of President Clinton, and Michael Joseph Melloy, a nominee of President George W. Bush. Dissenting in part was Bush nominee Raymond W. Gruender, who said he would have upheld the entire law, including the risk-of-suicide disclosure requirement.