South Dakota's unbelievable new abortion law.

The law, lawyers, and the court.
July 2 2008 6:43 PM

Telling Doctors What To Think

South Dakota's unbelievable new abortion law.

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The idea that a fetus is whole and separate will probably be news to a lot of women who have carried one. But what's more distressing, because the majority's reasoning is so strained, is the assertion that by defining a phrase one way, a state can erase its ambiguity and the variety of perceptions people bring to it. It's one thing to say—as the case law the majority relies on here does—that a statutory definition binds judges and their interpretation of language. It's another entirely to say that when doctors tell women they are carrying a human being, that women will think, Oh, right, that means only the long, convoluted thing that the state says it does. Most patients won't think that, because they won't necessarily define "human being" the way the statute does. As Yale law professor Robert Post says in a 2007 article (PDF) in the University of Illinois Law Review, "If South Dakota were to enact a statute requiring physicians to inform abortion patients that they were destroying the 'soul' of their unborn progeny, and if it were explicitly to provide in the statute that 'soul' is defined as 'human DNA,' the evasion would be obvious." Instead, South Dakota has co-opted human being and attached its own meaning to it.

The 8th Circuit's decision to uphold the South Dakota law, even though it compels doctors to say things they don't believe, is in part the fault of Justice Anthony Kennedy. In his 2007 decision banning a method of late-term abortion, Kennedy worried a lot about women who regret having abortions. With paternalistic abandon, he wrote about their "distress" in terms of their "lack of information" about abortion. Kennedy was talking, in graphic specifics, about lack of information on the way a so-called partial-birth abortion unfolds. Whether or not he's right, these details have nothing to do with philosophical musings about whether the fetus is a human being. But that didn't stop the 8th Circuit from quoting him at length in the very different context of the South Dakota law.

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The fraught claim that abortion harms women, which I've written about before, was languishing in legal Nowheresville until Kennedy unexpectedly raised it up and blessed it. Now that notion, and the small minority of women who attest to it, are a handy new tool for abortion opponents. The 8th Circuit includes six other states—Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North Dakota. Laws that compel doctors' speech, as this one does, would now be legal in all those places, should state legislators adopt them. And if states in other regions want to try passing such laws, they'll have a great precedent to cite to the other circuit courts.

In the meantime, Planned Parenthood's lawyers and the state's lone abortion clinic in Sioux Falls have two more weeks to figure out what its doctors can legally and ethically say to the women they treat. "Our doctors are now being asked to say things they do not believe are true," says Sarah Stoesz, the head of Planned Parenthood in South Dakota, North Dakota, and Minnesota. Whatever you think about abortion, how is that a good thing?