Is a New Day Dawning in Abortion Litigation?

Bill Saunders has posted an optimistic proposition on the Family Research Council's blog: that "a new day is dawning" in abortion litigation. For decades, abortion negligence and abortion battery plaintiffs have come up against what Constitutional litigator Jay Sekulow calls "the abortion distortion" - a recurring bias in favor of the abortionist at every stage of the proceedings.

It is testimony to the low expectations of anti-abortion activists that Saunders is so elated at the procedural ruling in the South Dakota case that divests a federal district judge there of authority to indefinitely postpone enforcement of a properly enacted state law that requires full disclosure by the abortionist, informed consent by the woman. The Family Research Council was not a party to the lawsuit, but filed an amicus curiae brief.

I would have thought that "a new day dawning" would entail leveling the playing field in malpractice, negligence and battery actions against abortionists, not just upholding modest, unburdensome state regulation of the abortion industry. Here is the text of Saunders' post on the Family Research Council's blog.

A new day is dawning in abortion litigation

Remember Gonzales v. Carhart? That's the Supreme Court decision from last year that upheld the Congressional ban on partial birth abortion. Justice Kennedy wrote the opinion, and lawyers tied themselves up in knots trying to interpret it. Most agree it was a narrow victory for the pro-life cause, but it was a victory. That can be seen in last Friday's decision by the 8th Circuit to allow a South Dakota abortion law to go into effect, a case in which FRC filed a friend of the court brief.

Prior to Gonzales v. Carhart, such laws were routinely struck down before they ever came into binding, legal force. Kennedy specifically noted, however, that this approach (another of the distortions abortion causes to the law) would no longer be followed. If someone wanted to challenge a law as it was applied to them, they could, and the court would decide whether specific provisions of that law, rather than the entire law, violated the Constitution. The 8th Circuit applied that logic to a challenge to South Dakota's law, and allowed the law to go into effect.

The law merely provides that women seeking an abortion should be given complete information about the risks involved, etc, but Planned Parenthood and the abortion industry wanted to stop it at any cost, as usual, regardless of the fact women deserve to receive such information. However, the 8th Circuit rejected their old "business as ususal" approach to litigation concerning abortion and replaced it with some common sense.

A new day is dawning in abortion litigation.

En banc, 8th Circuit says new South Dakota disclosure law is enforceable

U.S. District Judge Karen Schreier's injunction against enforcing a South Dakota abortion-related full disclosure law has been overturned, according an Associated Press wire story, clearing the way for implementation pending a determination by the same (overruled) judge as to the constitutional merits of the state law.

Court overturns injunction on S.D. abortion law
By CHET BROKAW

PIERRE, S.D. (AP) — A federal appeals court ruled that South Dakota can begin enforcing a law requiring doctors to tell women seeking abortions that the procedure ends a human life.

The 7-4 decision by the 8th U.S. Circuit Court of Appeals in St. Louis sends the case back to U.S. District Judge Karen Schreier of Rapid City for proceedings that will result in a decision on whether the law passed by the 2005 South Dakota Legislature is constitutional.

Schreier had temporarily prevented the law from taking effect while she decides the case. She had ruled that opponents had a fair chance of succeeding in their claim that the law violates doctors' free-speech rights by forcing them to tell women things the doctors might not believe.

A three-judge panel of the 8th Circuit had agreed with Schreier, but the full court threw out her order. It said Friday that Planned Parenthood, which operates South Dakota's only abortion clinic in Sioux Falls, has not provided enough evidence that it is likely to prevail.

"The bottom line is if the state Legislature orders a professional to tell the truth, that's not a violation of the First Amendment," said South Dakota Attorney General Larry Long, who is defending the law in court.

Mimi Liu, a lawyer for the Planned Parenthood Federation of America, said such rulings generally take about three weeks to take effect. Long said it could take less time.

The 2005 law would make doctors tell women "that the abortion will terminate the life of a whole, separate, unique, living human being." Women also would have to be told they have a right to continue a pregnancy and that abortion may cause women psychological harm, including thoughts of suicide.

Planned Parenthood has failed to show that the information to be given to women seeking abortions is untruthful, misleading or irrelevant to the woman's decision, the appeals court majority said. Taking into account definitions in the law, the information required to be given is biological in nature, so Planned Parenthood has not shown the information is ideological, the decision said.

Harold Cassidy, a lawyer representing two pregnancy counseling centers that support the abortion law, hailed the ruling.

"We think it's a big victory for the woman obviously to be given accurate information in order to make a decision not only for the child, but also for herself," Cassidy said.

Sarah Stoesz, president of Planned Parenthood in Minnesota, North Dakota and South Dakota, said the law would force doctors to read ideological language to women seeking abortions.

"They are imposing compelled speech on doctors. It is not about providing information to women. It is about intruding in the doctor-patient relationship. It is unprecedented and extremely outrageous," Stoesz said.

Planned Parenthood's lawsuit contends the law not only violates doctors' free-speech rights, but also is an undue burden on a woman's right to an abortion.

South Dakota voters in 2006 rejected a ballot measure to ban nearly all abortions. A measure on this year's ballot also would ban abortions but would allow exceptions in cases involving rape, incest and a threat to a woman's life and health.