Doctors wrestle with South Dakota abortion law.

The law, lawyers, and the court.
Aug. 19 2008 6:20 PM

Script Doctors

The dilemma facing South Dakota's abortion providers: Mislead your patients or break the law.

Demonstrators hold up signs as they protest South Dakota's new anti-abortion law outside the Federal Court building in Sioux Falls, S.D., Thursday, March 9, 2006. (AP Photo/Nati Harnik)
Demonstrators protest South Dakota's abortion laws

Last month, doctors who perform abortions in South Dakota had to start reading a state-mandated script to their patients. Supporters of the state law that gives these marching orders, which went into effect in July after a court ruling, say it's about informed consent. Misinformed consent might be more like it. The law requires doctors to describe "all known medical risks" of abortion, including "increased risk of suicide ideation and suicide." The doctors must also give patients a written statement telling them that "the abortion will terminate the life of a whole, separate, unique, living human being," and that the patients have "an existing relationship with that unborn human being" that is protected by the U.S. Constitution and the laws of South Dakota.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

It's fallen to Planned Parenthood, which runs South Dakota's only abortion clinic, to figure out how to follow these directives. On the one hand, the organization doesn't want to put abortion providers in legal jeopardy, since failure to follow the law can be punished as a criminal misdemeanor. On the other hand, doctors have an ethical responsibility to give patients accurate medical information. The mandatory statement linking abortion to an increased risk of suicide isn't supported by reliable medical evidence. And the statements about the fetus as a human being are moral or philosophical rather than scientific at heart, in Planned Parenthood's view. So what's an abortion provider in South Dakota to do?

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When I wrote about South Dakota's abortion law in July, several astute readers wrote in to suggest that Planned Parenthood doctors could say to their patients: Here's what South Dakota requires me to tell you. But I think that's wrong. Here's what the medical evidence says. Medical ethics would seem to require such a stance, if doctors think their patients would otherwise be misled. And doctors' First Amendment rights should easily protect them here. In Planned Parenthood v. Casey, the 1992 decision that upheld the core right to legal abortion in Roe v. Wade, the Supreme Court said that states can require women to receive "truthful, nonmisleading information" about abortion. Several states responded by passing laws that require doctors to lay out for their patients the stages of fetal development. But South Dakota's law has an entirely different effect: To warn women about an unproven heightened risk of suicide is hardly to speak the truth to them.

Planned Parenthood agrees that its doctors can't be muzzled. "Our position is that so long as we provide the information that's mandated by the statute, we're free to say anything else we want to say so long as we don't dispute objective scientific facts," says Roger Evans, one of the lawyers handling the case for the organization.

But Evans didn't want to go on the record about exactly what doctors are reading to patients and asking them to sign—Planned Parenthood's rendition of the state-ordered script. Yes, the organization is trying to comply with the law without making its doctors feel like liars, he said. But South Dakota's attorney general hasn't seen or signed off on the language the organization has come up with in interpreting the statute and the court ruling. The discussions haven't even gotten off the ground. Plus, Planned Parenthood's challenge to the law is back in court: The ruling that led the statute to take effect merely scuttled a preliminary injunction that had been in place since the law was passed in 2005. And that preliminary injunction rested only on the fetus-as-human-being parts of the law; no court has ruled on the suicide provision. So now Judge Karen Schreier of federal district court has the whole statute back before her, to decide whether it can stand or whether it's impermissibly coercing doctors' speech and thus in violation of the First Amendment. Schreier's eventual ruling will undoubtedly be challenged by whomever loses and wind up back at the 8th Circuit Court of Appeals—the court that lifted the preliminary injunction and put the law into effect.

Larry Long, the attorney general of South Dakota, wasn't eager to talk specifics, either. When I asked him whether abortion doctors could tell patients they think the information South Dakota is making them give out is wrong, he said, "I have no idea.  It's very difficult to answer your question without first determining whether they are complying with the statute." I asked him how he was planning to enforce the law. "I'm not sure I want to share that information with you," Long said. He did offer the following shot across the bow at Planned Parenthood: "If I was a lawyer representing one of these doctors, I'd offer the following sound legal advice: Read the statute to your patient. It's like the police issuing a Miranda warning."

That's not the same position that the state took before the 8th Circuit, according to Evans, when the attorney general's office said it could accept variations on the statutory language as long as the basic meaning was preserved. And so whether Planned Parenthood must follow the statute's script precisely will be one of the fights waged before Judge Shrier, who will probably hear the case this fall. (Also on the fall calendar: a November referendum in South Dakota that would ban almost all abortions.)

While the parties parry and feint and wait for their next day in court, the American Psychological Association is trying to put to rest the unsupported claim that abortion causes mental-health problems. The area of controversy is broader than suicide: Researchers who are abortion opponents have also claimed that the procedure is linked to heightened risk of depression and drug abuse. In the last few years, some of their work has been published in peer-reviewed medical journals. The APA assigned a task force to review all the relevant scientific literature and assess "the relative risk of mental health problems associated with abortion compared to its alternatives."

The APA task force report, published last week, concluded that "the majority of studies suffered from methodological problems, often severe in nature." One large and recurring flaw: Studies often fail to compare women who have abortion with women who keep unplanned pregnancies. That's the proper control group, the task force said, because women who plan to give birth differ from those who don't in ways that bear on mental health. Women whose pregnancies are unplanned tend to be poorer, as a group, and they are more likely to engage in risky behavior.

The task force authors conclude, "The best scientific evidence published indicates that among adult women who have an unplanned pregnancy therelative risk of mental health problems is no greater if they have a single elective first-trimester abortion than if they deliver that pregnancy." There is evidence that late-term abortions because of birth defects are understandably hard on women. And in general, the task force recognized that women who have abortions sometimes feel "sadness, grief, and feelings of loss." Some also experience depression and anxiety. But the authors found no evidence that abortion causes those reactions, any more than giving birth does. Postpartum depression, after all, is real and relatively common.

The task force report ends with a call for well-designed research that would settle the question of abortion's mental-health implications "once and for all." That would be nice. But in the meantime, the APA report probably won't persuade the South Dakota legislature to change its mind about ordering doctors to march their abortion patients through made-up mental-health risks. The right attacked the APA task force as biased and dismissed its work right from the start. Those critics are no happier now that the report is out. It's a truism that when science and politics tangle, facts often don't much matter. At the moment, women getting abortions in South Dakota are caught in that snarl.

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