Today the 8th Circuit Court of Appeals overturned a lower court injunction, allowing South Dakota's "informed consent" legislation to take effect. The legislation requires doctors to inform women seeking abortions that the procedure "ends a human life." In the 7-4 decision, the dissenters say the law meddles with doctors' rights because the state is forcing them to make value-laden statements. The case now goes back to the lower court.

Last April, Sarah Blustain wrote about this case and other "informed consent" laws for TAP:

This line of thinking makes clear that women are too ignorant to realize that they are carrying some sort of nascent life in them, and too weak to possibly decide for themselves whether to have an abortion. Even worse, drafters of the South Dakota law do not think women are competent to state whether they have absorbed all of this helpful state information properly: The law would require the doctor to certify, in writing, that he "believes she [the pregnant woman] understands the information imparted."

"Informed consent is good," says Yale's Reva Siegel (who wrote about these issues with me in TAP last year), "but not if the only abortion decision the movement recognizes as 'informed' is the decision to carry a pregnancy to term; if this is the premise on which the regulation and litigation rests, then the law is premised on an offensive view of women seeking abortion -- weak and confused and failing to conform to their natural role as mothers -- and will function to pressure and intimidate those women."

Blustain also interviewed Harold Cassidy, an anti-abortion lawyer who has made a career of advancing the line of argument that women should not be allowed the right to an abortion because they are poor decision-makers. (Cassidy penned a friend-of-the-court brief in this South Dakota case, on behalf of crisis-pregnancy centers.)

--Ann Friedman

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