In the Americans United for Life blog, Mailee Smith (staff attorney for the AUL) describes some encouraging elements of last week's 8th Circuit Court decision about South Dakota’s informed consent law. Check it out.
In a decision issued last week by the Eighth Circuit (sitting en banc), the Court reversed a preliminary injunction that had blocked the enforcement of certain provisions of South Dakota’s informed consent law.
The provisions require that a woman be informed that “the abortion will terminate the life of a whole, separate, unique, living human being,” and that the woman has an existing, Constitutional relationship with her unborn child. Planned Parenthood had challenged the law, and initially obtained the now-overturned preliminary injunction from the lower court.
The effect of this ruling remains to be seen. Because the decision involved only a preliminary injunction, the actual merits of the case—and the constitutionality of the informed consent provisions—have not been decided. However, a few positive developments must be noted.
First, the Court concluded that, in a preliminary injunction proceeding involving government action, plaintiffs such as Planned Parenthood must meet a higher standard. It is not enough that Planned Parenthood show that it might succeed on the merits of the case; it must show that it is likely to succeed. This heightens the standard that district courts in the Eighth Circuit will use when considering preliminarily enjoining abortion related laws.
Second, this Court more accurately balanced expert witness testimony than it has in the past. For example, in Carhart v. Gonzales, one of the partial-birth abortion cases, the lower court and Eighth Circuit took abortionist testimony as fact, completely dismissing the accuracy and strength of the government’s expert witnesses.
Here, however, the Court emphasized that Planned Parenthood did not have enough medical and scientific evidence that the informed consent provisions were unnecessary or inaccurate. The Court did not take as fact a plaintiff abortionist’s own affidavit. Instead, it balanced the legislative history and multiple expert witnesses testimonies given by the government. In other words, the Court did not take abortionist testimony as fact, as it has done in the past.
Finally, the Court indicated that the question of when life begins is a scientific, and not necessarily ideological, fact. It demanded scientific evidence from Planned Parenthood. And because Planned Parenthood did not produce, it lost at the preliminary injunction stage.
What happens next with this case remains to be seen. The informed consent provisions are not in the clear yet—the preliminary injunction stage is just one hurdle in the battle of constitutionality. But at least as the lawsuit proceeds, the provisions will be in effect.
