Authentic Freedom of Choice

Why is it that "pro-choicers" and advocates of a "woman's right to choose" so adamently oppose authentic freedom of choice? For a choice to be freely made, it must necessarily be an informed choice, not a decision made in ignorance or, worse yet, misinformation. It must be made knowingly, intelligently, and willfully, with a full understanding of the nature and consequences of the choice and the action to be taken. Without such information, such as the living and human nature of the unborn in the womb, a decision such as whether to abort, and thereby terminate the life of that unborn, is made blindly, and to willfully and purposely withhold such information from the one making such choice and taking such action is to deprive her of the ability to make a free choice, it is to oppress her, not respect her liberty or autonomy. This is simple commonsense, and a court has FINALLY upheld the principle. --


Mike Rounds, Governor, et al. v. Planned Parenthood Minnesota, et al.
U.S. Court of Appeals for the Eighth Circuit, No. 05-3093 (en banc)
June 27, 2008

The Governor and Attorney General of South Dakota ("the State"), along with the intervenor crisis pregnancy centers, appeal the district court's preliminary injunction preventing the 2005 version of South Dakota's statute regulating informed consent to abortion from becoming effective. For the reasons discussed below, we vacate the preliminary injunction and remand to the district court for further proceedings.

I.

In 2005, South Dakota enacted House Bill 1166 ("the Act"), amending the requirements for obtaining informed consent to an abortion as codified in S.D.C.L. § 34-23A-10.1. Section 7 of the Act requires the performing physician to provide certain information to the patient as part of obtaining informed consent prior to an abortion procedure and to certify that he or she believes the patient understands the information.

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In addition, § 8(4) of the Act amended S.D.C.L. § 34-23A-1 to define "Human being" for the purposes of the informed-consent-to-abortion statute 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." A physician who violates the Act knowingly or in reckless disregard is guilty of a Class 2 misdemeanor. S.D.C.L. § 34-23A-10.2.

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In June 2005, Planned Parenthood moved for a preliminary injunction to prevent the Act from taking effect as scheduled on July 1, 2005. In support of the argument that §§ 7(1)(b)-(d) would violate physicians' free speech rights by compelling them to deliver the State's ideological message, rather than truthful and non-misleading information relevant to informed consent to abortion, Planned Parenthood's evidence consisted solely of affidavits from Dr. Ball and bioethicist Paul Root Wolpe, Ph.D. In her affidavit, Dr. Ball described her professional background, including a board certification in obstetrics and gynecology. Without elaboration, Dr. Ball stated that the disclosures in §§ 7(1)(b)-(d) "are statements of ideology and opinion, not medicine or fact." Ball Aff. P 2. Dr. Ball also stated that she would be unable to clarify the disclosures upon a patient's request, as required by § 7, "because these are not medical statements or facts that I am trained as a Medical Doctor to address." Id. P 4. The affidavit made no reference to the Act's definition of "human being" in § 8(4).

Dr. Wolpe's affidavit included a curriculum vitae detailing his expertise in "the area of ideology in medicine and bioethics." Wolpe Aff. P 1. Dr. Wolpe stated that the proposition "that from the moment of conception, an embryo or fetus is a 'whole, separate, unique, living human being' . . . is not a scientific or medical fact, nor is there a scientific or medical consensus to that effect." Id. PP 2, 3. Dr. Wolpe further averred 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." Id. P 6.

In its opposition to the motion for preliminary injunction, the State introduced portions of the Act's legislative history and several affidavits. The legislative history includes testimony from several women who had obtained abortions in South Dakota and felt their decisions would have been better informed if they had received from their abortion providers the information required by § 7. In addition, the legislative history includes testimony from experts such as Marie Peeters-Ney, M.D., a physician and geneticist, explaining the scientific basis for the disclosure required by § 7(1)(b) that "the abortion will terminate the life of a whole, separate, unique, living human being." Dr. Peeters-Ney testified that use of the term "human being" was accurate because:

Becoming a member of our species is conferred immediately upon conception. At the moment of conception a human being with 46 chromosomes comes into existence. These chromosomes, the organization, the chromosomal pattern is specifically human. The RNA, the messenger protein, the proteins are distinctly human proteins. So this new human being is a member of our species, and humanity is not acquired sometime along the path, it occurs right at conception.

Senate State Affairs Comm. Hearing at 25. Dr. Peeters-Ney also stated that an embryo or fetus is whole in the sense that "[a]ll the genetic information sufficient and necessary to mature, and the information that is needed for this human being's entire life is present at the time of conception"; that it is "separate from the mother" because "[t]he genetic program is totally complete and this human being will mature according to his or her own program"; and that it is unique because it has "a totally unique genetic code." Id. at 25-26.

The State augmented the points raised in the legislative history with eight affidavits from medical experts and eight from women who had undergone abortions or worked at crisis pregnancy centers. For example, David Fu-Chi Mark, Ph.D., a molecular biologist employed in the pharmaceutical industry, stated that the Act's definition of "human being" as an "'individual living member of the species Homo sapiens,' including human beings living in utero, makes it clear that the statement under [§ 7(1)(b)] is stated as a scientific fact and nothing more. As such, it is truthful and scientifically accurate." Mark Aff. P 1. The affidavit described in detail the DNA and RNA science supporting the accuracy of the statement. Similarly, Bruce Carlson, M.D., Ph.D., a professor of medicine and author of a widely used textbook on human embryology, stated that "[t]he post implantation human embryo is a distinct individual human being, a complete separate member of the species Homo sapiens, and is recognizable as such." Carlson Aff. PP 1, 5.

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In Planned Parenthood of Southeast Pennsylvania v. Casey, the Supreme Court held that "a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion" implicates a physician's First Amendment right not to speak, "but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State." 505 U.S. 833, 884, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (plurality opinion). However, the Court found no violation of the physician's right not to speak, without need for further analysis of whether the requirements were narrowly tailored to serve a compelling state interest, id., where physicians merely were required to give "truthful, nonmisleading information" relevant to the patient's decision to have an abortion, id. at 882. * * * Furthermore, the fact that the information "might cause the woman to choose childbirth over abortion" did not render the provisions unconstitutional. Id. at 883.

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Taken in isolation, § 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 § 8(4) of the Act, but we are not persuaded that this is so.

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The disclosure actually mandated by § 7(1)(b), in concert with the definition in § 8(4), is "[t]hat the abortion will terminate the life of a whole, separate, unique, living human being," § 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[]," § 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 v. Carhart, 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. P 6. This statement appears to support the State's evidence on the biological underpinnings of § 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 § 7(1)(b) is untruthful, misleading or not relevant to the decision to have an abortion. See Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997) (per curiam) (emphasizing that a preliminary injunction "should not be granted unless the movant, by a clear showing, carries the burden of persuasion" and presents proof even more substantial than that required on a motion for summary judgment) (quotation omitted).

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Given Planned Parenthood's failure to produce sufficient evidence to establish that it is likely to prevail on the merits of its compelled speech claim, we need not address the remaining Dataphase factors. In summary, the district court abused its discretion by failing to give effect to the statutory definition of "human being" in § 8(4) of the Act. Planned Parenthood's evidence at the preliminary injunction stage does not establish a likelihood of proving that, with the definition incorporated, the disclosure required by § 7(1)(b) is anything but truthful, non-misleading and relevant to the patient's decision to have an abortion, and thus "part of the practice of medicine, subject to reasonable licensing and regulation by the State." Casey, 505 U.S. at 884. Accordingly, we vacate the preliminary injunction entered on compelled speech grounds by the district court. * * *

The larger question, raised by the implications of this decision, is whether the decision could be a vehicle by which to affirm in law the personhood of the unborn, or at least to, once and for all, torpedo Roe's reliance on "philosophy" and "theology," rather than scientific fact, to deny that the entity in the womb is a living and separate and distinct human being.

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