by Gretchen Borchelt, Senior Counsel
National Women’s Law Center
The Eighth Circuit today issued its decision in a case we’ve blogged about before, concerning a South Dakota law that requires doctors to provide anti-choice ideological propaganda to patients seeking an abortion. Under the 2005 law, doctors performing abortions are required to tell their patients, among other things, that the procedure will “terminate the life of a whole, separate, unique, living human being.” As a reminder: in October 2006, a panel of the Eighth Circuit protected the free speech rights of doctors and the right to abortion of their patients by agreeing to halt enforcement of the law. In April 2007, just before Gonzales v. Carhart was decided, the entire Eighth Circuit reheard the case.
Today, the Eighth Circuit came out the other way. In a 7-4 vote, the court decided that it was constitutional for the state to force physicians to give this “information” to women, based in part on Gonzales v. Carhart’s concern that women be protected from a decision they might “regret,” and the court reversed the decision to halt enforcement. Since today’s decision was based only on First Amendment grounds, the court sent the case back to the lower court for consideration of other claims. In the meantime, the law will go into effect. This means that doctors in South Dakota must deliver ideological speech to women seeking an abortion or risk criminal prosecution. As the dissent points out, this law is not about giving women information designed to assist their decision-making, rather it “expresses ideological beliefs aimed at making it more difficult for women to choose abortions.”
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