Consenting Adults

South Dakota voters may have overturned the state's abortion ban last year, but the fight over a companion piece of extreme anti-choice legislation, passed in the same period as the ban, is raging in the courts. On Wednesday, the 8th Circuit Court of Appeals heard arguments on whether to allow South Dakota's draconian informed consent law to go into effect. The law would require abortion providers to tell women "that abortion will terminate the life of a whole, separate, unique, living human being," and "that 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." Whether this is a mandated script or suggested language is one of the central issues of the case.

Just why would a woman arriving at a clinic for an abortion need to be told this information? The basic argument that anti-abortion activists pushed -- and the South Dakota legislature adopted -- is that women are weak, ignorant, and unable to make decisions for themselves. "This new wave of informed consent legislation and litigation is dangerous precisely because it misleads," says Yale Law School professor Reva Siegel.* "Its anti-abortion premises and purposes are dressed up in the language of the pro-choice claim -- as restrictions designed to protect women's welfare and women's freedom." Should the law be upheld in the courts, it could both codify the personhood of the fetus and undermine the personhood of the mother in ways that would affect American legal and legislative efforts in untold ways.

The first bit of advice the law would compel doctors to give, about the abortion terminating the life of a human being, rests on the notion that a woman seeking an abortion doesn't actually understand what being pregnant means. This is certainly the argument in another case, recently filed in Chicago by Harold Cassidy, the same lawyer who argued in favor of the South Dakota informed consent law in front of the 8th Circuit Court on Wednesday. (See also "The Right Not to Choose," TAP's interview with Cassidy.)

Mary Doe v. Planned Parenthood/Chicago Area, the Cassidy complaint filed in Chicago on grounds of "wrongful death" and "infliction of emotional distress," asserts that Planned Parenthood "intentionally withhold[s] from the pregnant woman considering an abortion, the fact that the second patient, the mother's unborn child, is already in existence, and that the procedure will terminate the life (or kill) a whole human being as a matter of biological and scientific fact." (For TAP's take on "pro-woman" anti-abortion rhetoric, see "Mommy Dearest?," Oct 2006.) Cassidy has pushed this same line of argument in yet another case, Acuna v. Turkish, that has been heard and will be decided by this summer by the Supreme Court of New Jersey.

The second bit of information that abortion doctors would be required to tell a woman seeking an abortion is that she has a "right" to continue her pregnancy. The South Dakota law, as well as the Mary Doe and Acuna cases, assumes that women considering abortions are generally so coerced by outside forces and by their own "crisis thinking" that they need the state to step in to protect them. Written into the text of the South Dakota law is the official "legislative finding" that a woman seeking an abortion may experience pressures that can cause " an emotional crisis, undue reliance on the advice of others, clouded judgment, and a willingness to violate conscience to avoid those pressures." The legislature also found that "there exists a need for special protection of the rights of such pregnant women." This is the daddy state at its finest.

The Chicago complaint similarly contends that Mary Doe was "subjected to" an abortion procedure "[a]s a result of the counseling, assertions and representations of the Planned Parenthood personnel," which was done in such a way as to "induce reliance." Not only that, but "Michael Doe [the unborn] was killed during an abortion procedure," not as a result of his mother's choice but "as a result of the negligence and misrepresentations" of the clinic staff. In other words, a woman walks into an abortion clinic to talk about whether to have an abortion, as Mary Doe did, consents to an abortion, and should now be considered the victim, "subjected to" a procedure? So widespread is Cassidy's assumption of women's weakness that he is seeking to get certification for a class-action suit on behalf of "all healthy women pregnant with unborn children ... not known to be unhealthy" who had abortions through Chicago's Planned Parenthood clinics.

When challenged by the 8th Circuit Court judges, another lawyer arguing on behalf of South Dakota's law explained, "The sad reason that this has to be given is when women are in the position of thinking about abortion, it very often occurs ... that there are a lot of people sometimes who want the woman to have an abortion when the woman does not want to." And the South Dakota legislature determined that the woman needed some support from the law "so she could say to herself that 'it's true that my boyfriend might want me to have an abortion, but I have a right not to.'" In other words, suddenly the "culture of death" has become so powerful that we need a new right -- not the right to choose an abortion but a right to protect us from doing so.

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."

The Planned Parenthood response to this "informed consent" law rests on two grounds: First, that the law violates both the doctor's and the pregnant woman's First Amendment rights by promoting ideology rather than fact, and second, that this language creates an undue burden on the woman, in violation of Planned Parenthood v. Casey -- that is, by attempting to intimidate and shame her, it hinders her free choice rather than informing it. And both of these arguments are based on the much more compelling assumption that women are moral actors who are, by nature, capable of and, by law, entitled to make decisions about the meaning of their pregnancies themselves.

Planned Parenthood's lawyers on Wednesday invoked the language in Casey, the 1992 Supreme Court case that established that "at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Concurs ACLU lawyer Talcott Camp, who argued against Cassidy in the Acuna case, "One of the things that's really key about Casey is that it articulates constitutional protection for the woman's right to make the determination in accordance with her own spiritual values." Camp views this language as key because it "expresses the indivisibility of freedom of belief and freedom of reproductive choice: You can't have one without the other. Coerced profession of faith" -- which Camp believes the South Dakota law would enforce -- "is anathema to our most cherished and fundamental freedoms."

These cases may sound like long shots, but some pro-choice activists are quietly anxious about how the 8th Circuit Court will rule on the South Dakota law. Although a district court found the law likely unconstitutional and granted a preliminary injunction (which was upheld last October by a three-judge panel of the 8th circuit), the entire 8th Circuit Court took the rare step of agreeing to rehear the case en banc. Of this group of judges, the majority are Bush appointees, and it's possible they may allow the South Dakota law, in some form, to go into effect. From there the law may certainly be tested in other ways and other courts.

There are real risks to having these all of these Cassidy cases, however unconventional they seem, move through the courts. According to Camp, appellate courts generally defer to the factual findings of the lower courts. Likewise, courts usually, though don't always, defer to the factual findings of legislatures. Indeed, this is exactly what one lawyer for South Dakota was hoping for during the hearing on Wednesday, when he asked the court to defer to the findings of the state legislature. He said the state's biased task force report on abortion, which stated that an abortion "terminates the life of a whole, separate, unique, living human being" (language written into the informed consent law), was based on "scientific evidence."

Some pro-choice lawyers have suggested Cassidy may be content to lose as often as he needs to on the chance that he'll stumble on some judge somewhere who will adopt his views as "findings of fact." Says Roger Evans, Planned Parenthood's Senior Director of Public Policy Litigation and Law, "In a way, he's throwing it up against a wall and hoping one will stick."

In other words, the findings of activist conservative judges or radically anti-abortion legislatures, no matter how local, help accrue new definitions of the unborn that make it incrementally easier to successfully ban abortion. Perhaps even more troubling is the idea that these cases could slowly build a new judicial and legislative definition of woman, as a childish and barely competent moral decision-maker for whom legal abortion becomes a menacing option from which she needs protection.

*Text edited from the original.

* * *

Related: "The Right Not to Choose," TAP talks to prominent antiabortion lawyer Harold Cassidy. By Sarah Blustain, Web Exclusive: 04.13.07.