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Eighth Circuit accepts argument advanced in AUL amicus brief and upholds South Dakota’s “suicide advisory”

Today in Planned Parenthood v. Rounds, the Eighth Circuit upheld South Dakota’s “suicide advisory”—that portion of its informed consent law requiring that women be informed that there is an increased risk of suicide ideation and suicide following abortion.

AUL filed an amicus brief twice—once before the original Eighth Circuit panel, and then again when the full Eighth Circuit panel requested copies of the brief—arguing that such an advisory is not an “undue burden” on women seeking abortion.  Rather, AUL argued, the Supreme Court in Gonzales v. Carhart (in upholding the federal partial-birth abortion ban) explicitly held that state and federal legislatures are given “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”  And there is substantial medical evidence demonstrating an association between abortion and suicide to support the South Dakota law’s advisory.

Based upon this standard in Gonzales, AUL argued that Planned Parenthood, who was challenging the law, had a very high burden of proof:

[Planned Parenthood] 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.

In its opinion today, after citing the same language from Gonzales, the Eighth Circuit explained in similar language that Planned Parenthood failed to meet this high burden of proof:

Instead, Planned Parenthood would have to show that any “medical and scientific uncertainty” has been resolved into a certainty against a causal role for abortion. In other words, in order to render the suicide advisory unconstitutionally misleading or irrelevant, 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 has not met this burden.

The Court’s acceptance of this logical extension of the Supreme Court’s Gonzales decision is potentially ground-breaking as it applies to other cases and other abortion regulations.  For example, states should be encouraged under this reasoning to regulate the off-label use of RU-486 (Mifeprex), which has been demonstrated to be unsafe in medical literature and has been deemed “unapproved” by the FDA.  Even if plaintiffs like Planned Parenthood challenge such regulations, they will not be able to fulfill such a high burden: under Gonzales and today’s Eighth Circuit opinion, those who challenge such a common sense regulation would have to show there is no medical evidence that RU-486 can cause significant harm when used inappropriately.

Also significant is the Court’s overwhelming acceptance of the medical literature demonstrating a link between abortion and suicide.  The Court stated that the studies submitted by South Dakota “are sufficiently reliable to support the truth of the proposition that the relative risk of suicide and suicide ideation is higher for women who abort their pregnancies compared to women who give birth or have not become pregnant,” and that this risk is “generally ‘known.’”  No longer can Planned Parenthood ignore the plethora of medical evidence mounting against it.

Similarly, the Court also acknowledged that the standard medical practice is to recognize a strongly correlated adverse effect as a “risk” while further studies are conducted to clarify whether various underlying factors play causal roles.  This turned Planned Parenthood’s practice on its head; typically, Planned Parenthood argues for courts to take the opposite approach and not consider anything a “risk” of abortion unless “proven” by Planned Parenthood-approved sources.  The Court also described at length the potential methodological flaws in a report by the American Psychological Association, which illegitimately refuted the link between abortion and suicide.

Overall, the opinion contains a wealth of significant holdings which will work to protect women in South Dakota, the Eighth Circuit, and potentially beyond.  The Eighth Circuit has started to pull the veil off the abortion industry’s dirty little secret: that abortion harms women.