Last week, the Eighth Circuit Court of Appeals asked AUL to re-file an amicus brief detailing the risk of suicide following abortion. The request came as part of the Circuit’s extremely rare move to rehear arguments on South Dakota’s law requiring that women be informed of the risk of suicide that can follow abortion (“suicide advisory”).
AUL originally filed the brief two years ago on behalf of the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), Christian Medical & Dental Associations (CMDA), and other medical organizations, detailing to the appellate court the testimony and medical evidence heard in the lower court that demonstrated an increased risk of suicide following abortion.
While two judges on the original Eighth Circuit panel voted to strike South Dakota’s suicide advisory, the third—Judge Gruender—wrote a strong and well-reasoned dissent that included much of the information and arguments cited in AUL’s brief.
For example, AUL argued that Planned Parenthood (the plaintiff challenging the provision) had an excessively high burden to meet in order to prevail on its claim that the suicide advisory is unconstitutional. In examining the evidence presented to the lower court, AUL argued,
In Gonzales v. Carhart, the U.S. Supreme Court explicitly held that state and federal legislatures are given “wide discretion to pass legislation in areas where there is medical and scientific uncertainty”…. In sum, the Plaintiffs have a very high burden. They must demonstrate that there is no medical or scientific uncertainty regarding the increased risk of suicide ideation and suicide following induced abortion. In other words, they must claim and prove that there is zero evidence demonstrating a link between abortion and suicide. This they cannot do.
Similarly, Judge Gruender stated in his dissent,
… the Supreme Court “has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty,”… In other words, in order to render the suicide advisory unconstitutionally misleading, Planned Parenthood would have to show that abortion has been ruled out, to a degree of scientifically accepted certainty, as a statistically significant causal factor in post-abortion suicides. An examination of Planned Parenthood’s evidence reveals that it cannot meet this burden.
Not only was Judge Gruender’s dissent one of the best judicial opinions to discuss the risks inherent in abortion, but it appears to have sparked the Eighth Circuit’s very rare decision to reconsider the portion of the previous decision striking the suicide advisory. If the Eighth Circuit upholds the advisory, that would allow for every state in the Eighth Circuit—Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North Dakota—to enact similar requirements. And it could spark a test case before the U.S. Supreme Court that would enable the Court to look at medical data that specifically verifies what it only assumed to be true in 2007 when it decided Gonzales: that women suffer psychological harm after abortion.
Further, if the Eighth Circuit adopts AUL’s and Judge Gruender’s legal argument—that Planned Parenthood must demonstrate there is NO evidence of a risk following abortion—it could have lasting implications for other areas of abortion legislation and litigation. Instead of making blanket assertions that state laws seeking to protect women from the harms of abortion are unconstitutional, plaintiffs like Planned Parenthood will have to show that such laws have absolutely no medical basis—a standard that will be nearly impossible for abortion advocates to meet.
AUL’s brief, filed this week, will now be considered by the entire Eighth Circuit panel as it reconsiders the constitutionality of South Dakota’s suicide advisory. Oral argument in the case will be heard on January 9.