Court Upholds Informed Consent Statute

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Court Upholds Informed Consent Statute

Special Report - September 2, 2009
On August 20, a U.S. District Court upheld most of a South Dakota law requiring abortionists to give more accurate and specific information to women seeking their services. Known as “informed consent,” the 2005 law required that women be told that abortion “will terminate the life of a whole, separate, unique, living human being.” It also required that they be given information on the increased risk of suicide, “all known medical risks,” and that a mother enjoys an existing legally protected relationship with her unborn child. Planned Parenthood Minnesota, North Dakota and South Dakota filed suit (Planned Parenthood v. Rounds) against the state shortly after the law’s passage. The Court upheld the first and third requirements, but struck down as unconstitutional the requirements regarding suicide and relationship.

Because the legislation defined a “human being” as “an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation,” the Court upheld the requirement for abortionists to inform patients that the procedure would kill a unique living human being. The Court also found a disclosure of “all known medical risks” to be reasonable for such a procedure, despite objections by Planned Parenthood. "This is a victory for women and their right to complete and accurate medical information when considering abortion,” said Dr. Charmaine Yoest, President & CEO of Americans United for Life “Fully informed consent is a bedrock principle of medical care and this principle is especially applicable to abortion. As the Supreme Court has repeatedly recognized, an uninformed decision about abortion can lead to devastating consequences."

Still, in her opinion, Judge Karen Schreier found the requirement regarding increased risk of suicide to be unconstitutional because the state could not adequately prove that such an assertion is medically accurate. Her explanation for striking language about a mother’s relationship with her child was more disturbing. She argued that “in the legal context, a pregnant mother cannot have a ‘relationship’ with a ‘human being,” as that word is defined in the statute” because “the unborn has never been recognized in the law as a person in the whole sense.” Despite other state statutes affording protection to pre-born children, like an Unborn Victims of Violence Act, Schreier found that “the meaning of the term ‘human being’ does not elevate the status of that unborn embryo or fetus to a ‘person’ within the meaning of the established laws.” Planned Parenthood asserted that the United States Constitution does not protect any mother-child relationships, but rather “protects the woman’s right to choose an abortion.”

In related news, a study released in the July/August 2009 issue of the Journal Child Development confirms that children as young as 30 weeks gestation exhibit signs of short-term memory. Researchers in the Netherlands measured changes in a pre-born child’s response to repeated stimulation at increments of 10 minutes, 24 hours, and four weeks. They found the best memory learning at 34 and 36 weeks, but short-term memories as early as 30 weeks and longer-term memories in 34 week olds. The study is the latest in an increasing body of evidence that children begin the process of learning and developing relationships—especially with their mother—in the womb.