South Dakota's new abortion law

[Roofus]

In 2005, South Dakota passed an unprecedented abortion law. The statute purports to be about ensuring that patients give informed consent. Planned Parenthood characterizes it differently: as an intrusion on the doctor-patient relationship, forcing doctors to give inaccurate medical facts and to be the state's ideological mouthpiece. Now, following a ruling by the U.S. Court of Appeals for the 8th Circuit, the law is about to go into effect for the first time. And the question is how it will change the experience of going to get an abortion—and whether it will open a new front in the abortion wars by encouraging other states to follow suit.

The South Dakota law requires doctors to give patients who come for an abortion a written statement telling them that "the abortion will terminate the life of a whole, separate, unique, living human being," and that they have "an existing relationship with that unborn human being" that is constitutionally protected. (What does the constitutionally protected part mean? Who knows.) In addition, doctors are ordered to describe "all known medical risks of the procedure and statistically significant risk factors," including "depression and related psychological distress" and "increased risk of suicide ideation and suicide."

The idea behind the statute is that if you force women to confront the implications of an abortion, they'll be less likely to go through with it. That's what the "whole, separate, unique, living human being" language is about. In Roe v. Wade, the Supreme Court ruled that a fetus is not a person, in the legal sense of the word, which is to say it doesn't have the same rights. So South Dakota couldn't order doctors to tell women that to have an abortion is to kill a person. But human being is a different term that's up for grabs, the drafters of the legislation decided.

This was the insight of a smart New Jersey lawyer named Harold Cassidy, who has represented women who've accused abortion providers of malpractice, and who helped draft South Dakota's statute. Cassidy also helped persuade state lawmakers that women might be scared out of having abortions if doctors were forced to enumerate the procedure's medical risks. This is where the idea of linking abortion to depression and increased risk of suicide comes in. Never mind that the weight of the medical evidence tilts heavily against the increased-suicide tie or that there's more evidence of a link between depression and unintended pregnancy—or simply giving birth—than between depression and abortion, according to most of the literature.

If you care about doctors' freedom of speech, or their responsibility to give accurate information to patients, the South Dakota statute looks pretty alarming. And yet by a vote of seven judges to four, the U.S. Court of Appeals for the 8th Circuit managed to weave its way around these concerns last week. After sitting on the case for more than a year, the court instructed abortion clinics (actually, clinic, since there's only one in South Dakota) to put the law into effect in mid-July.

In a majority opinion by Judge Raymond Gruender, the court ruled only on the "human being" part of the statute—a challenge to the suicide provision is still pending before a lower court. (Planned Parenthood decided it could live with the depression provision because the law doesn't claim that abortion increases that risk.) Planned Parenthood argued that the state is legislating morality because to call a fetus a "whole, separate, unique, living human being" is an ideological statement, not a medical one. The Supreme Court has told the states that it's not for them to resolve when life begins—and it should certainly follow from this that they can't force any such resolution on doctors. As the 8th Circuit dissent by Judge Diana Murphy points out, the question "in some sense encompass[es] the whole philosophical debate about abortion."

But none of this swayed the majority. They bought the state's argument that the statute circumvents ideology by defining "human being," elsewhere 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." Presto, said the majority—with that definition, the "truthfulness and relevance" of the provision "generates little dispute." Yes, this logic is as tautological as it sounds. The legislature basically defined "human being" to include unborn human beings.

The idea that a fetus is whole and separate will probably be news to a lot of women who have carried one. But what's more distressing, because the majority's reasoning is so strained, is the assertion that by defining a phrase one way, a state can erase its ambiguity and the variety of perceptions people bring to it. It's one thing to say—as the case law the majority relies on here does—that a statutory definition binds judges and their interpretation of language. It's another entirely to say that when doctors tell women they are carrying a human being, that women will think, Oh, right, that means only the long, convoluted thing that the state says it does. Most patients won't think that, because they won't necessarily define "human being" the way the statute does. As Yale law professor Robert Post says in a 2007 article (PDF) in the University of Illinois Law Review, "If South Dakota were to enact a statute requiring physicians to inform abortion patients that they were destroying the 'soul' of their unborn progeny, and if it were explicitly to provide in the statute that 'soul' is defined as 'human DNA,' the evasion would be obvious." Instead, South Dakota has co-opted human being and attached its own meaning to it.

The 8th Circuit's decision to uphold the South Dakota law, even though it compels doctors to say things they don't believe, is in part the fault of Justice Anthony Kennedy. In his 2007 decision banning a method of late-term abortion, Kennedy worried a lot about women who regret having abortions. With paternalistic abandon, he wrote about their "distress" in terms of their "lack of information" about abortion. Kennedy was talking, in graphic specifics, about lack of information on the way a so-called partial-birth abortion unfolds. Whether or not he's right, these details have nothing to do with philosophical musings about whether the fetus is a human being. But that didn't stop the 8th Circuit from quoting him at length in the very different context of the South Dakota law.

The fraught claim that abortion harms women, which I've written about before, was languishing in legal Nowheresville until Kennedy unexpectedly raised it up and blessed it. Now that notion, and the small minority of women who attest to it, are a handy new tool for abortion opponents. The 8th Circuit includes six other states—Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North Dakota. Laws that compel doctors' speech, as this one does, would now be legal in all those places, should state legislators adopt them. And if states in other regions want to try passing such laws, they'll have a great precedent to cite to the other circuit courts.

In the meantime, Planned Parenthood's lawyers and the state's lone abortion clinic in Sioux Falls have two more weeks to figure out what its doctors can legally and ethically say to the women they treat. "Our doctors are now being asked to say things they do not believe are true," says Sarah Stoesz, the head of Planned Parenthood in South Dakota, North Dakota, and Minnesota. Whatever you think about abortion, how is that a good thing?

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[Ex-Cyber]

Isn't this essentially a more deceitful and obnoxious version of the "warning labels" for evolution-accepting textbooks?

[AgentGreen]

Yup. It's that same brand of backwards thinking.

I think that quite a few more people should've had abortions way back when

[Calavera]

There are plenty of people in this world that should have defiantly been aborted. I think this video best sums it up.

[AgentGreen]

There are plenty of people in this world that should have defiantly been aborted. I think this video best sums it up.

Yes, we should abort those people in defiance, definitely.

[butters]

Yup. It's that same brand of backwards thinking.

How exactly is calling a human a human backwards thinking? What's backward is how we live in a society where a large percentage of people believe in spending tons of money to save animals while they kill their unborn children.

[AgentGreen]

The definition of human is so multifaceted and flawed that it's useless to argue it. That's not what's backwards.

But what IS backwards to ruin some woman's life by forcing/guilting her to have a baby she doesn't want and to spend all that time forcing her to have it and not doing a damn thing to help her support it.

So you have a mother who will potentially live in despair over how her dreams were crushed by having to take care of a child she wasn't ready for or didn't want and a child who could grow up unloved. OR Maybe the child was put up for adoption. Might be nice if Mr. Moneybags adopts them, but more than likely they'll end up in the state system and bounced around home-to-home where there are maybe a small amount of decent foster parents but a large number of pricks who just do it for the state check and only do the bare minimum to care for their foster kids (and yes, I know it's not THAT much money in the checks from the state, but that doesn't mean there aren't people who do it because I know a sizable amount of them).

Either way, the kid might grow up with some emotional issues, or even turn into a less-than-upstanding member of society from a lack of love and care and stuff (I knew kids who spent their entire lives in the system and they're in their 20s now and are in and out of entanglements with the law so this isn't a simple slippery slope fallacy hypothesis. Can't say I know someone who as a fetus was up for abortion at one point, or at least nobody talked about it.)

At least the mom didn't sin against the world's most popular imaginary friend though, right?

Of course things could work out fine and not at all how I described it, but why interfere with free will and the freedom to make ones on decisions like that? I don't think that in a world where the population is doubling roughly every 35 years we should discourage voluntary population control.

And elaborate on the saving animals thing, are you talking about rescue shelters, the ASPCA, and stuff like that or saving wildlife?

[Ex-Cyber]

Yup. It's that same brand of backwards thinking.

How exactly is calling a human a human backwards thinking? What's backward is how we live in a society where a large percentage of people believe in spending tons of money to save animals while they kill their unborn children.

What's backwards thinking is the idea that theocratic activists should try to force their version of the "truth" on everyone else via legislation.

[butters]

Of course things could work out fine and not at all how I described it, but why interfere with free will and the freedom to make ones on decisions like that? I don't think that in a world where the population is doubling roughly every 35 years we should discourage voluntary population control.

I'm all for free will. However, I believe that there are consequences for all of your actions. If you are having sex, you should be prepared for the consequences. There might be a moral grey line if a woman is raped, but I'm not a woman and I've never known anyone who was put in that situation, so I'm not sure of my viewpoint on that.

I really can't go very deep on this subject without talking about my so-called "imaginary friend," and that's not going to do me any good here.

[AgentGreen]

There are consequences for having an unwanted child, far graver than those of having sex I think.

Keep in mind that a good number of women who go after abortions are teenage girls. Teenage girls who possibly didn't get a good education on sex (either because of abstinence only education, prude parents, or just general incompetence on the educator's part or a combo of the above) and went into it not knowing full well the consequences.

Or they were scammed into it by some piece of trash who was able to play off insecurities and say "I'll love you more if I can do it with you" and they don't wear a condom because they either don't know or they don't like it and they'll say something like "I'll pull it out, don't worry."

Or a condom ripped, whatever.

Point is, a woman should not be the only one chained down with the consequences where a man necessarily isn't. It's unfair.

And even still, the ones with high enough "moral" conviction won't get an abortion anyway.

[|darc|]

I'm all for free will. However, I believe that there are consequences for all of your actions. If you are having sex, you should be prepared for the consequences.

I don't understand the "babies are your punishment for having sex" argument. Sex is not evil, no matter how much your imaginary friend tells you it is. There's absolutely nothing wrong with two people enjoying themselves doing an entirely natural thing.

I kill many thousands of babies every day when I beat off and spray their tiny unborn bodies into a napkin.

There might be a moral grey line if a woman is raped, but I'm not a woman and I've never known anyone who was put in that situation, so I'm not sure of my viewpoint on that.

This is an argument I will never understand. Let's accept your idea for one minute that abortion is flat-out murder. What makes it OK to kill a child born out of rape? If killing someone and aborting someone are equal, is it OK to birth the child born of rape and after a year if you're disgusted with it, and you throw it in the trash can, is that OK?

I really can't go very deep on this subject without talking about my so-called "imaginary friend," and that's not going to do me any good here.

Well, you need to keep your imaginary friend out of my country's laws. Perhaps you can organize all of the people in the imaginary friends club and get them to agree to not have abortions?

By the way, isn't it said in your imaginary friend's storybook that only he can judge people? If it's your imaginary friend's job to judge people, shouldn't people keep out of his way? Shouldn't we let everything be a free-for-all and when we meet him, leave it up to him whether or not we go on to playland or eternal time-out?

[Ex-Cyber]

I'm all for free will. However, I believe that there are consequences for all of your actions. If you are having sex, you should be prepared for the consequences.

Abortion is a consequence, for those who choose it.

I really can't go very deep on this subject without talking about my so-called "imaginary friend," and that's not going to do me any good here.

It probably won't win any arguments, but it might do you some good to think critically about the issue and how it relates to your faith. I'm interested in knowing the doctrinal basis (if any) for your position, because there doesn't seem to be any particular rationale that is broadly accepted.

[butters]

I don't understand the "babies are your punishment for having sex" argument. Sex is not evil, no matter how much your imaginary friend tells you it is. There's absolutely nothing wrong with two people enjoying themselves doing an entirely natural thing.

I kill many thousands of babies every day when I beat off and spray their tiny unborn bodies into a napkin.

There is nothing wrong with having sex, as long as it is within a marriage. I know there are many Christians out there who are prudes about the topic, but there's really no need to act that way. Song of Solomon is an entire book of the bible about the joys of sex.

By the way, isn't it said in your imaginary friend's storybook that only he can judge people? If it's your imaginary friend's job to judge people, shouldn't people keep out of his way? Shouldn't we let everything be a free-for-all and when we meet him, leave it up to him whether or not we go on to playland or eternal time-out?

You are referring to only one verse without taking the rest into context. The prohibition of judging is only for hypocritical judgment. cf Matthew 7:1-6 and Matthew 18:15-17.

If you want to make life a free-for-all, you're free to do that. There's nothing stopping you except society's laws. Wrong enough people, though, and you'll regret the lifestyle.

Something I'm curious about: What is it you are living your life for? Money? Fame? Glory?

It probably won't win any arguments, but it might do you some good to think critically about the issue and how it relates to your faith. I'm interested in knowing the doctrinal basis (if any) for your position, because there doesn't seem to be any particular rationale that is broadly accepted.

You ask for research, which is fine. There's nothing in canonical scripture that says anything about abortion. However, taking the entire bible as a whole, it is very possible to see God's viewpoint on abortion.

God knits babies together in the womb (Psalm 139:13, Job 31:15). An unborn child is being created in the spiritual image of God (Gen. 1:27). Scripture multiple times talks about God knowing people before they were born (Psalm 139:13-16, Luke 1:15 and Jeremiah 1:5). The word brephos is used in Luke for unborn child (Luke 1:44), baby (Luke 2:12), and young child (Luke 18:15), which demonstrates that Luke felt the same way about fetuses as he did about babies and children.

[AgentGreen]

There is nothing wrong with having sex, as long as it is within a marriage.

You ended your sentence 8 words late.

The only things wrong with sex is that there are people doing it without being educated on consequences (and the actual consequences, not that "you sin if you're not married" bullcrap) and/or they get confused by crazy zealots telling them "don't screw till yer weddin'!" and having bizarre chastity rituals.

[Ex-Cyber]

You ask for research, which is fine. There's nothing in canonical scripture that says anything about abortion. However, taking the entire bible as a whole, it is very possible to see God's viewpoint on abortion.

God knits babies together in the womb (Psalm 139:13, Job 31:15). An unborn child is being created in the spiritual image of God (Gen. 1:27). Scripture multiple times talks about God knowing people before they were born (Psalm 139:13-16, Luke 1:15 and Jeremiah 1:5). The word brephos is used in Luke for unborn child (Luke 1:44), baby (Luke 2:12), and young child (Luke 18:15), which demonstrates that Luke felt the same way about fetuses as he did about babies and children.

It sounds like the (Abrahamic) religious argument is, in essence:

1) Abortion constitutes willful interference with God's creative work
2) Abortion desecrates the image of God represented by human life (sanctioned and specially created, in contrast to an icon)
3) God does not distinguish the identity of a fetus from that of a born person (at least in some special cases)

Is that a fair summary? I'm curious about this because most anti-abortion messages I see are base appeals to emotion like "abortion stops a beating heart", pictures of fetuses, and so on, and most essays I've seen on the topic seem to assume that human life is sacred and that a fetus is included in that description.

[pixel]

To everyone:

Welcome to the debate. We've been dueling it out for almost two years now.

[pavelbure]

To everyone:

Welcome to the debate. We've been dueling it out for almost two years now.

oh, it's been longer than that.

[|darc|]

There is nothing wrong with having sex, as long as it is within a marriage. I know there are many Christians out there who are prudes about the topic, but there's really no need to act that way. Song of Solomon is an entire book of the bible about the joys of sex.

No, by putting those artificial constraints on sex, you're already admitting there is something wrong with it somewhere. What is wrong about two people having consensual sex and enjoying it, but not in a marriage?

I think that the right thing to do in the long term of one's life is to eventually get married, but that's not for everyone and most people will at least sample around, and I don't see what's wrong with that at all.

If you want to make life a free-for-all, you're free to do that. There's nothing stopping you except society's laws. Wrong enough people, though, and you'll regret the lifestyle.

I never said I wanted to make my life a free-for-all. It just seems counterintuitive that bible nuts want to regulate absolutely everything, but at the same time ramble on constantly about how awesome "freedom" is.

Something I'm curious about: What is it you are living your life for? Money? Fame? Glory?

At one point I would have said fame; if my name went down somewhere as doing something important, even if it was tiny, that would be the only way I could live on after death.

But really, I've become more pessimistic since then, and I don't think the human race is eternal, so there's little point in doing that.

Why do I live? If you want the honest answer, I don't have any fucking reason. I just live life doing the things I enjoy. I consider myself on a ride. Sometimes when the ride isn't fun anymore, I'm tempted to end it, but I'm too lazy or scared to commit suicide and hurt the people who love me and invested their own time in me. I know that seems like backwards thinking since they, too, will die one day and none of that matters, but that seems to be something I care about for some reason. So I just live life doing the things I enjoy, for myself. I don't think anyone needs a reason to continue living; just keep on living and don't fear death. You won't feel it anyway.

oh, it's been longer than that.

I think he meant in South Dakota.

[pixel]

To everyone:

Welcome to the debate. We've been dueling it out for almost two years now.

oh, it's been longer than that.

I've been beating my head against the wall ever since some peckerwood put it on the ballet.

[|darc|]

To everyone:

Welcome to the debate. We've been dueling it out for almost two years now.

oh, it's been longer than that.

I've been beating my head against the wall ever since some peckerwood put it on the ballet.

Damn those crackers!