(9/19/2011)

“Doctors must inform pregnant women that they have ‘an existing relationship’ with an ‘unborn human being’” according to a recently upheld provision in South Dakota’s 2005 informed consent law. In its recent opinion on this case, the Eighth Circuit Court of Appeals in St. Louis, Mo., overturned a lower federal court judge's decision that had struck down the "relationship advisories" section of South Dakota's 2005 informed consent law.

During the drawn-out legal battle, Heartbeat International, National Institute of Family and Life Advocates, CareNet, and the Family Research Council filed an amicus brief asking the court to reject Planned Parenthood’s attempt to block portions of the law.

Leslee Unruh, founder of Alpha Center in South Dakota, was deeply involved in this battle. She says that this victory will have a huge impact on pro-life legislation across the nation. “A federal court finally recognizes the personhood of a baby in its mother’s womb!” rejoices Leslee. The status of personhood bestows rights and the protection of the law on the fetus.

Leslee says that the collection of data by South Dakota pregnancy help centers (PHCs) is what turned the tide during this court struggle. The court demanded documentation of the effects of choosing life over abortion on the women served in South Dakota PHCs. “Our center was able to document the immensely positive impact of choosing life on our clients.”  The Eighth Circuit Court judges were impressed with the facts and the personal testimony of these brave women, according to Leslee.

The battle lines were drawn with a Planned Parenthood challenge to a 2005 South Dakota Public Health and Safety Code amendment expanding the requirements for informed consent to abortion. Under that law, a doctor must give a woman contemplating abortion oral advisories 24 hours before the procedure and written advisories at least two hours before the procedure.

In addition to providing the patient with information about known medical risks and increased risk of suicide and suicidal thoughts, the written advisories inform the patient that:

• The abortion will terminate the life of a whole, separate, unique, living human being.
• The pregnant woman 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.
• By having an abortion, a pregnant woman’s existing relationship and her existing constitutional rights with regards to that relationship will be terminated.

In the 2005 challenge, a lower federal district court granted summary judgment in favor of South Dakota on the human being and risk advisories and in favor of Planned Parenthood on the relationship and suicide advisories. Planned Parenthood, however, continued to challenge the "existing relationship" provision.

Previously, in 2009, federal District Court judge Karen Schreier wrote, regarding the relationship section of the South Dakota law, "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."

On September 2, 2011, the Eighth Circuit Court panel, rejected Judge Schreier’s interpretation and agreed with the state's reading of the law on the relationship between a mother and her unborn child. In effect, the Eighth Circuit Court affirmed that a preborn child is a person.

Still, the recent ruling of the Eighth Circuit Court is not a complete victory. The three-judge panel gave a two-one split decision reversing the district court judge’s decision ruling on the “protected relationship” provision, and only narrowly upholding the judge’s decision with regard to the “risk of suicide” provision.

Circuit Court Judge Raymond Gruender dissented, arguing that the “risk of suicide” provision should have been upheld. He wrote in his dissent, “Even the evidence relied upon by Planned Parenthood acknowledges a significant, known, statistical correlation between abortion and suicide. This well-documented statistical correlation is sufficient to support the required disclosure that abortion presents an ‘increased risk’ of suicide, as that term is used in the relevant medical literature.”

Eighth Circuit Court Judges Diane E. Murphy and Michael Joseph Melloy voted in the majority.

The Eighth Circuit Court's September 2 ruling is a victory for LIFE on several fronts. The ruling supports a woman’s right to know that she has a relationship with the child living in her womb. It also establishes yet another protection for unborn children.