Full Disclosure

The full en banc 8th Circuit Court of Appeals handed a victory Friday to GOP Gov. Mike Rounds and the people of South Dakota, lifting an injunction sought by Planned Parenthood against a South Dakota statute that mandates disclosures to women seeking abortions about the consequences of their decisions, including disclosure of the fact that an “abortion will terminate the life of a whole, separate, unique, living human being.” In no other area of the law is the Left so dedicated to preventing the full disclosure of facts to consumers. The 8th Circuit opinion, written by George W. Bush appointee Judge Raymond Gruender and joined by five other of President Bush’s appointees to the bench, recognized Planned Parenthood’s opposition to the disclosure of scientifically accurate facts for what it was.

Here’s the relevant excerpt from the court’s opinion:

[Planned Parenthood v.] Casey and Gonzales [v. Carhart] establish that, while the State cannot compel an individual simply to speak the State’s ideological message, it can use its regulatory authority to 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. Therefore, Planned Parenthood cannot succeed on the merits of its claim that Sec. 7(1)(b) violates a physician’s right not to speak unless it can show that the disclosure is either untruthful, misleading or not relevant to the patient’s decision to have an abortion.
Taken in isolation, Sec. 7(1)(b)’s language “[t]hat the abortion will terminate the life of a whole, separate, unique, living human being” certainly may be read to make a point in the debate about the ethics of abortion. Our role, however, is to examine the disclosure actually mandated, not one phrase in isolation. Planned Parenthood’s evidence and argument rely on the supposition that, in practice, the patient will not receive or understand the narrow, species-based definition of “human being” in Sec. 8(4) of the Act, but we are not persuaded that this is so.

+++

The disclosure actually mandated by Sec. 7(1)(b), in concert with the definition in Sec. 8(4), is “[t]hat the abortion will terminate the life of a whole, separate, unique, living human being,” Sec. 7(1)(b), and that “human being” in this case means “an individual living member of the species of Homo sapiens . . . during [its] embryonic [or] fetal age[],” Sec. 8(4). The State’s evidence suggests that the biological sense in which the embryo or fetus is whole, separate, unique and living should be clear in context to a physician, cf. Gonzales, 127 S. Ct. at 1627 (“[B]y common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb.”), and Planned Parenthood submitted no evidence to oppose that conclusion. Indeed, Dr. Wolpe’s affidavit, submitted by Planned Parenthood, states that “to describe an embryo or fetus scientifically and factually, one would say that a living embryo or fetus in utero is a developing organism of the species Homo Sapiens which may become a self-sustaining member of the species if no organic or environmental incident interrupts its gestation.” Wolpe Aff. Para. 6. This statement appears to support the State’s evidence on the biological underpinnings of Sec. 7(1)(b) and the associated statutory definition. Planned Parenthood’s only other evidence, Dr. Ball’s affidavit, ignores the statutory definition of “human being.” Finally, this biological information about the fetus is at least as relevant to the patient’s decision to have an abortion as the gestational age of the fetus, which was deemed to be relevant in Casey. See 505 U.S. at 882. As a result, Planned Parenthood cannot meet even the less rigorous requirement to show a fair chance of prevailing, much less the more rigorous requirement applicable here to show that it is likely to prevail, on the merits of its claim that the disclosure required by Sec. 7(1)(b) is untruthful, misleading or not relevant to the decision to have an abortion.

[Footnote 9] The dissent recognizes that the term “human being” “may refer to purely biological characteristics.” Post at 29. Section 8(4) of the Act does just that, defining “human being” as a “living member of the species Homo sapiens, including the unborn human being during the entire embryonic and fetal ages” for purposes of the required disclosure. Like the evidence submitted by Planned Parenthood, the dissent steadfastly ignores this biology-based definition and maintains that the required disclosure is ideological in nature and, therefore, unconstitutional. By ignoring the statutory definition of “human being,” however, the dissent mischaracterizes the nature of the required disclosure and concludes that it compels a physician to answer the metaphysical question of when “human life” begins. Contrary to the dissent’s analysis, the Act, when read in light of the nonmisleading statutory definition of “human being,” does not require a physician to address whether the embryo or fetus is a “whole, separate, unique” “human life” in the metaphysical sense.

One of the ironies of the abortion debate is that the Supreme Court in 1973 departed from Constitutional text and tradition in large part because Harry Blackmun convinced himself that he was doing the best thing from a scientific and medical perspective (Roe was famously deferential to the wisdom of doctors and derived from Blackmun’s background with the Mayo Clinic), yet the state of the science had marched relentlessly in favor of the pro-life position ever since, in terms of our knowledge about the unborn fetus and the time when the child can be viable outside the womb. Which is why the constitutional argument, already shorn of textual support, has tended to focus on precedent rather than factual reality. It’s good to see another court recognize that reality.
Judge Gruedner was confirmed 97-1 in 2004 (only Tom Harkin voted against him), despite grumbling about his background by Senator Leahy. Elections have consequences.