Perspective

South Dakota's Abortion Script — Threatening the Physician–Patient Relationship

Zita Lazzarini, J.D., M.P.H.

N Engl J Med 2008; 359:2189-2191November 20, 2008

Article

Under a law that went into effect in July, physicians in South Dakota must tell any woman seeking an abortion that she is terminating the life of “a whole, separate, unique, living human being” with whom she has an “existing relationship,” that her relationship “enjoys protection under the United States Constitution and under the laws of South Dakota,” and that abortion terminates that relationship along with “her existing constitutional rights with regards to that relationship.”1

The “informed-consent” law (see boxProvisions of South Dakota's 2005 “Informed-Consent” Law for Abortion.) was passed in 2005 but was immediately suspended by an injunction sought by Planned Parenthood, which operates the only South Dakota clinic providing abortions. On June 27, 2008, in Planned Parenthood Minnesota v. Rounds, a divided Eighth Circuit Court of Appeals lifted the injunction, clearing the way for implementation.2

The law also requires that doctors give pregnant women a description of medical and “statistically significant” risks of abortion, among which it includes depression and other psychological distress, suicide, danger to subsequent pregnancies, and death. Physicians must tell women the approximate gestational age of the fetus and describe its state of development. All disclosures must be made in writing, and the woman must sign each page of the document. The physician must answer all the woman's questions in writing and enter them into her medical record. The physician must also certify in writing that the woman received the information and that she understood it, as far as the physician could ascertain. Physicians who do not satisfy the statute are subject to license suspension or revocation and may be charged with a class 2 misdemeanor.

In the U.S. Supreme Court's most recent abortion case in 2007, Gonzales v. Carhart, Justice Anthony Kennedy noted that “some women come to regret their choice to abort the infant life they once created and sustained.”3 Had these women been better informed, he suggested, they might have chosen not to abort and thus been spared the “grief more anguished and sorrow more profound” caused by discovering how their pregnancy had been terminated.3 Many commentators interpreted Kennedy's words as an invitation to state legislatures to amend abortion statutes to add informed-consent requirements. South Dakota appears to have answered this invitation.

The South Dakota requirements, referred to as “the script” by the media, signal a new step in states' efforts to restrict abortion. The law is unique in ways that should cause concern to physicians, patients, and protectors of the physician–patient relationship. As part of an ongoing challenge to abortion, it has import far beyond the borders of South Dakota.

In challenging the law, Planned Parenthood argued that it violates physicians' First Amendment rights, first by compelling them to deliver the state's ideological message — that “the abortion will terminate the life of a whole, separate, unique, living human being” — and then by keeping them from disassociating themselves from that message by requiring them to certify that the woman has read and understood the scripted information. In the 1992 decision in Planned Parenthood v. Casey, the Supreme Court established that states may require physicians to give pregnant women information that “a reasonable patient would consider material to the decision of whether or not to undergo the abortion” — informing them of the relevant medical risks, alternatives to the procedure, the gestational age and developmental stage of the fetus, and the existence of organizations that can provide alternatives to abortion and help in obtaining medical care and child support. Previous state informed-consent statutes were closely modeled on the provisions of Casey.2 The South Dakota law's substantial departures from those provisions have led legal scholar Robert Post to conclude that its “obvious objective . . . is to use the concept of `informed consent' to eliminate abortions.”4

Although, as Casey established, the state's powers of “reasonable licensing and regulation” give it the authority to require doctors to provide women with specific information in order to protect their health and the potential life of the fetus, the state may not, as the Supreme Court stated in a 1977 case, Wooley v. Maynard, use mandated speech to “disseminate an ideology, no matter how acceptable to some.” When required speech serves the state's ideological interests, the state's authority cannot “outweigh an individual's First Amendment right to avoid becoming the courier for such message.”

The majority in Rounds dismissed the First Amendment argument by focusing on the statute's inclusion of a definition of “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.”1 The reference to this definition, the court found, makes the description of the fetus as “a whole, separate, unique, living human being” a biologic, rather than ideological, one.

But although state legislatures have substantial discretion to define terms used in their laws, they cannot merely use the iteration of definitions to cloak religious, philosophical, or metaphysical language in statutory garments and call it “scientific” or “biologic.” The dissent in Rounds noted that “human being” has no specific scientific or medical meaning and that its meaning varies with the context. Although it may refer to purely biologic characteristics, especially when distinguishing humans from other species, “it also may be a value judgment, indicating entitlement to the moral or political rights shared by all persons.”2 Post notes that the question of “whether the fetus is a human being is thus understood by all sides to the abortion controversy to be an essentially contested moral proposition.”4 In its abortion cases, the Supreme Court has shied away from making value judgments related to the term “human being,” when life begins, or whether the fetus is a “human life.” The Eighth Circuit's position that the use of the definition resolves the ideology question is overly simplistic, at best.

The sections of the statute referring to a woman's “relationship” with the fetus, the protection that such a relationship enjoys, and the rights “terminated” by having an abortion are so vague as to defy explanation. Is a woman who has an abortion violating constitutionally protected rights of her fetus? Could she be punished for doing so? Since physicians must certify that women understand the mandated information, could a physician who cannot correctly explain the meaning of the “relationship” be prosecuted? Neither the U.S. Constitution nor the South Dakota Constitution explicitly mentions any such “relationship,” nor is there evidence in constitutions, statutes, or legal cases indicating that abortion terminates a pregnant woman's “constitutional rights.” Rather than supplying information that a reasonable person would find necessary to make a medical decision, the language about “relationships” and the termination of “rights” can reasonably be interpreted only as intended to intimidate pregnant women with vaguely described and legal-sounding consequences.

In addition, the statute's complex requirements for certification of informed consent far exceed those in other statutes. Arguably, the statute seriously discourages physicians from providing alternative or more accurate information by inducing fear that adding contradictory information would either render them unable to “certify” the woman's comprehension of the state's information or expose them to liability — and effectively prevents them from disassociating themselves from the compelled speech. The requirement that women sign each page of the disclosure document allows them no latitude to decide for themselves how much or little detail they wish to have about the procedure. The requirements of certification and for writing and recording of questions and answers in the medical record will have a chilling effect on open discussions between physicians and patients and are likely to “compel a woman to conform her speech to the state's chosen messages.”2

But South Dakota's script also threatens the physician–patient relationship in ways that may resonate far beyond the issue of abortion. Patients have a right to expect that physicians will provide them with accurate and complete medical information that will guide them in making medical decisions.4 The purported increased risks of psychological distress, depression, and suicide that physicians are required to warn women about are not supported by the bulk of the scientific literature.3 By requiring physicians to deliver such misinformation and discouraging them from providing alternative accurate information, the statute forces physicians to violate their obligation to solicit truly informed consent — and thereby detracts from the essential trust between patients and their physicians. If legislatures can mandate that physicians provide women with ideological, vague, intimidating, and false information about abortion, what is to stop them from intruding further into physician–patient discussions regarding end-of-life decisions, the use of future stem-cell–based therapeutics, the efficacy of birth control, or the role of condoms in preventing sexually transmitted infections?

Finally, the script statute should be read in the context of repeated efforts in South Dakota and other states to eliminate abortion, either through increased restrictions or outright bans. South Dakota has tried and failed three times in recent years — the third time through a referendum defeated earlier this month — to implement broad bans on abortion. Each would have violated the “undue burden” standard in Casey and directly challenged Roe v. Wade. Several states require pregnant women seeking an abortion to undergo an ultrasound before the procedure. Proposed federal regulations would deny federal funding to health care facilities that did not enforce “conscience clauses” — provisions protecting health care workers who refuse to deliver any care they find morally or religiously objectionable.5 But even laws that appear to leave the central tenet of Roe and Casey intact can chip away at Roe incrementally, as the script provisions demonstrate. By assuming that women are incapable of making decisions about abortion as competent adults in consultation with their physicians, these statutes tend to reduce women to their reproductive capacity and suggest that they need the paternalistic protection of legislatures and society.

The Supreme Court's decision in Gonzales v. Carhart indicates that a majority of the justices are willing to permit greater restrictions on abortion rights. With future retirements from the Court, that margin may grow. Although some may view South Dakota's restrictive abortion provisions as affecting only the 700 or so women who seek an abortion in that state each year, such complacency may be misplaced. These provisions mark a substantial inroad into the physician–patient relationship that ought to worry any practicing physician.

No potential conflict of interest relevant to this article was reported.

Source Information

Ms. Lazzarini is an associate professor and director of the Division of Medical Humanities, Health Law, and Ethics at the University of Connecticut Health Center, Farmington, and a faculty member at the Center for Law and the Public's Health, Johns Hopkins Bloomberg School of Hygiene and Public Health, Baltimore.

References

References

1. 1

   S.D. Codified Laws, § 34-23A-10.1 (2006).
   

2. 2

   Planned Parenthood Minnesota v. Rounds, 530 F.3d 724 (2008).
   

3. 3

   Gonzales v Carhart, 550 U.S. 124 (2007).
   

4. 4

   Post R. Informed consent to abortion: a First Amendment analysis of compelled physician speech. Univ Ill Law Rev 2007;3:939-939
   

5. 5

   45 C.F.R. pt. 88 (RIN 0991-AB48), Fed. Reg. 73(166): 50274. August 26, 2008.
   

Citing Articles (5)

Citing Articles

1. 1

   Erin E. Tracy. (2011) Three Is a Crowd. Obstetrics & Gynecology 118:5, 1164-1168
   CrossRef

2. 2

   Munk-Olsen, Trine, Laursen, Thomas Munk, Pedersen, Carsten B., Lidegaard, Øjvind, Mortensen, Preben Bo, . (2011) Induced First-Trimester Abortion and Risk of Mental Disorder. New England Journal of Medicine 364:4, 332-339
   Full Text

3. 3

   Lisa L. Littman, Christina Zarcadoolas, Adam R. Jacobs. (2009) Introducing abortion patients to a culture of support: a pilot study. Archives of Women's Mental Health 12:6, 419-431
   CrossRef

4. 4

   Philip R. Reilly. (2009) Commentary: The federal ‘Prenatally and Postnatally Diagnosed Conditions Awareness Act’. Prenatal Diagnosis 29:9, 829-832
   CrossRef

5. 5

   Curfman, Gregory D., Morrissey, Stephen, Greene, Michael F., Drazen, Jeffrey M., . (2008) Physicians and the First Amendment. New England Journal of Medicine 359:23, 2484-2485
   Full Text