I just read the actual opinion (I got it from LEXIS, but there’s probably an ungated version available at the court’s website).
The ND statute would require physicians performing abortions to make three kinds of disclosures to a patient before the patient consents: a biological disclosure, a relationship disclosure, and medical risk disclosures. Planned Parenthood sued to have the statute declared unconstitutional. The defendants (the ND governor and attorney general) moved for summary judgment. This was the court’s opinion on the summary-judgment motion.
- The biological disclosure requires the physician to tell the patient that “the abortion will terminate the like of a whole, separate, unique, living human being.” Importantly, “human being” is defined in the statute as “an individual living member of the species Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation.”
The court held that this requirement was
constitutional, since the physician was not prevented from explaining that the term “human being” is used in the statute “in a biological sense and not an ideological sense.”
- The relationship disclosure would require the physician to tell the patient that she “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” and that “by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated.” In addition, the defendants stated that “relationship” is here being used in the legal sense, not the biological sense.
The court explained that a state can require a physician to provide “truthful, non-misleading information relevant to a patient’s decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion.” Thus, Planned Parenthood bore the burden of showing that the disclosure was untruthful, misleading, or not relevant.
The court held that the relationship disclosure is
unconstitutional, because a relationship, in the legal sense, requires two or more persons, and an embryo is not legal “person” under U.S. law. Thus, by requiring a physician to say that a patient “has an existing relationship with that unborn human being,” the statute would require the physician to say something untruthful or misleading.
- The medical-risk disclosures require the physician to provide the patient with a “description of all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including . . . (ii) Increased risk of suicide ideation and suicide.”
Planned Parenthood argued that this requirement was unconstitutionally vague in what it required physicians to do in order not to break the law.
The court held that these disclosures are
partly constitutional and partly unconstitutional. It is constitutional to require the physician to disclose all known medical risks, because long-standing law on informed consent shows that that is not impermissibly vague. However, it’s not constitutional to require the disclosure of “risk factors to which the pregnant woman would be subjected,” because that phrasing is so poorly drafted that it doesn’t make sense. According to expert witnesses, a “risk factor” is something that exists
before the procedure being discussed (e.g., hypertension). Thus, it makes no sense to require disclosure of “risk factors” that the patient
“would be subjected to.” Third, it’s also not constitutional to require disclosure of suicide risk, because the weight of the evidence showed that there is no association between suicide and abortion.
- Planned Parenthood also challenged the statute’s medical-emergency exception to the disclosure requirements, on the grounds that it was unconstitutionally vague. The court held that the exception is constitutional.
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