Americans United for Life

Americans United for Life protects and defends human life from conception to natural death through vigorous legislative, judicial, and educational leadership.

Informed Consent

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



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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.

Guttmacher Study on informed consent flawed and biased



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In the June publication of “Perspectives on Sexual and Reproductive Health” (a Guttmacher Institute publication), pro-abortion researchers argue in the article Attitudes and Decision Making Among Women Seeking Abortions at One U.S. Clinic that laws requiring that women be given pertinent information before choosing abortion are unnecessary. 

But this study contains major flaws: it studies only one abortion clinic; it does not mention the state in which that clinic does business; and it does not indicate whether that state has any informed consent laws.

The study is based entirely on a pre-counseling survey asking women to respond to a number of statements with either “true,” “kind of,” or “false.”  For example, one statement was “I am sure of my decision to have an abortion.”  Before counseling, 94 percent of women responded with “true.”  Five percent of women responded with “kind of”—yet the researchers concluded that these women were “sure” of their abortion decision.  Overall, the study found that 87 percent of the woman had high pre-counseling confidence in their decision.  But what about the other 13 percent?  Shouldn’t 100 percent of women who abort deserve to be “sure” of their decision?

Moreover, the study only considered women’s pre-counseling responses to the survey.  It did not indicate how women felt after “counseling” by a clinic staff person.  How many women responded with “kind of” after counseling?  Of course, because we don’t know in what state the clinic operates, we don’t know what kind of counseling the women received.  And “[i]t was not the goal of [the] study to follow the emotional outcomes of women following an abortion.”

We do know that seven percent of women who sought abortions did not have them performed, with at least two percent of women changing their minds before abortion.  However, we do not know if that shift in decision was before or after counseling.  But considering the clinic studied performs between 5,000 and 6,000 abortions per year, that percentage translates to at least 100 to 120 women (2 percent) changing their mind each year.  It does not take a study to know that those 120 children appreciate that decision.

After compiling the data, the researchers “conducted a phone interview with the clinic’s director of counseling to solicit her interpretation of the results.”  As to be expected, the clinic employee believed that the results were incorrect, and that more women were confident in their decision than demonstrated by the survey, and that fewer women were unsure in their decision than demonstrated by the survey.  The researchers then adopted the clinic employee’s interpretation of the data.

The clinic employee also stated that “the great majority of patients change their responses away from believing that abortion is like killing after discussing their beliefs with a counselor.”  I.e., after discussing a belief that she is killing her baby, a woman is persuaded by a pro-abortion “counselor” paid by a clinic which is making money from the abortion that abortion is not “killing.”  The clinic employee also stated that “an important aspect of the counseling session is attempting to calm women who are upset by their interactions with antiabortion protestors outside the clinic.”

Contrary to the purpose of the pro-abortion study, these revelations about the “counseling” performed by the clinic emphasize the need for state legislation mandating informed consent before abortion.  Clearly, the clinic’s “counseling” is focused more on persuading women to have abortion than it is on actually informing women of the risks of abortion and the alternatives available.

The researchers conclude that women will benefit more from “interactions with caring, nonjudgmental, trained counseling staff who can assess and respond appropriately to their individual needs.”  Of course, in the view of these researchers, “nonjudgmental” does not mean that the counselor is not biased in favor of abortion, and “trained” means the counselor is trained to sell abortion. 

Further, why do the researchers conclude that informed consent legislation prevents such “individual” counseling?  There is nothing in any informed consent law that prevents a clinic employee from having a one-on-one counseling session with a woman seeking abortion. 

The aforementioned information is just the tip of the proverbial iceberg when it comes to the study’s bias toward abortion.  It is clearly a mechanism to spout pro-abortion mantras.  The article claims that women cope well following abortion (ignoring data that women face an 81 percent increased risk of mental health problems following abortion) and that fewer than one percent of women cite pressure from a partner or parents as “the most important reason” for their abortion (ignoring that 64 percent of women report feeling coerced into their abortions).  Apparently, if coercion happens but isn’t “the most important reason” for the woman’s abortion, it’s okay to allow the woman to be coerced.

Women deserve better.  Women need to be presented with all pertinent information before abortion—and not just that information deemed necessary by an employee paid by an abortion clinic.

Abortion Proponents Argue Against Medical Standards of Care



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What happens when abortion providers don’t follow practices of standard medical care?

You get Kermit Gosnell.  Or Steven Brigham and Nicola Riley.  You get unsafe, unsanitary conditions. 

You get a “back alley.”

In order to better protect the health and welfare of women seeking abortion, states regulate abortion clinics and require informed consent before obtaining an abortion.  For example, abortion clinic regulations and ultrasound provisions help ensure that women are treated in the manner they deserve.

A basic component of an ultrasound law is a required standard of care.  A “standard of care” is “a statement of actions consistent with minimum safe professional conduct under specific conditions, as determined by professional peer organizations.”  Taber’s Cyclopedic Medical Dictionary (20th ed. 2005).  In the ultrasound context, this means that abortion providers are to perform an ultrasound in a professional manner consistent with the way ultrasound is performed across the abortion or obstetrics communities.

But abortion proponents are arguing against including a basic standard of care in ultrasound requirements. 

For example, ultrasound bills are currently making their way through the Virginia legislature.  Contained in these bills is a provision that the ultrasound “shall be made pursuant to standard medical practice in the community.”  In other words, abortion providers must follow a basic standard of care.  They shouldn’t conduct the ultrasound haphazardly.  They shouldn’t throw an image of the woman’s gall bladder on the screen and claim that it is “products of conception.”

But without merit, abortion proponents are claiming that this standard of care provision requires a transvaginal ultrasound in the first trimester, comparing the technique to rape.

Nothing could be further from the truth.

These bills require abortion providers to perform ultrasound in the way it is performed in the community.  Do abortionists regularly use transvaginal ultrasound in the first trimester?  NO.  Do obstetricians regularly use transvaginal ultrasound in the first trimester?  NO.  To the contrary, the usual procedure is to perform an abdominal ultrasound.

Abortionists typically perform ultrasound (abdominally) before abortion.  So what is this all about? 

It is about politics.  The Governor of Virginia is thought to be a potential Vice President candidate.  He has voiced his support of ultrasound legislation, while saying that he would ask state legislators to “clarify” the language so that abdominal ultrasounds would be the focus of the pending law. These ultrasound bills are moving through the legislature, making them targets.  And abortion proponents are using the welfare of women as a political pawn, sacrificing standard medical care on the altar of abortion on demand.

If abortion proponents succeed in removing the standard of care language in this bill, they will attempt to do so again, in other states and in other bills.  And when medical standards of care are removed, we are left with an industry of Kermit Gosnells.

This is also a last-ditch effort to thwart the passage of a commonsense bill aimed at the protection of women.  The abortion industry is reeling.  The American public is more pro-life than ever before.  And contained in the Virginia bills is a requirement that the abortion provider offer the woman an opportunity to see the image of her unborn child.  This is the last thing an abortion provider wants. 

For too long, the abortion industry has been trying to hide information from women.  The most accurate, truthful information we can give to a woman is an ultrasound picture of her unborn child. 

The abortion industry hates these bills because they allow a woman to see what abortion providers so fervently try to hide: life.

Fifth Circuit Upholds Comprehensive Texas Ultrasound Law



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Today, a three-judge panel of the Fifth Circuit Court of Appeals issued a unanimous decision upholding a newly enacted Texas ultrasound law and completely vacating a lower court’s injunction against the law’s enforcement.

At issue were provisions requiring that abortion providers display an ultrasound and provide a medical description of the dimensions of the embryo or fetus, the presence of cardiac activity, and the presence of external members and internal organs—all as part of the informed consent necessary before abortion. 

Among many arguments, the plaintiff-abortion providers claimed that these provisions constituted unconstitutional “compelled speech.”  Put simply, the abortion providers did not want to provide pertinent information to women before abortion, and went to court to try to avoid doing so. The district court had agreed with the plaintiff-abortion providers that requiring physicians to provide this kind of information was unnecessary and amounted to “compelled speech.” 

In other words, the district court ignored the basic ruling in Planned Parenthood v. Casey that states like Texas can ensure that women receive information on the consequences of abortion to the unborn child.  Fortunately, the Fifth Circuit placed women’s health and well-being above the preferences of abortion providers who did not want to disseminate truthful, medical information.

Significantly, the Fifth Circuit ruled that the disclosure of the ultrasound, the fetal heartbeat, and their medical descriptions are “the epitome of truthful, non-misleading information.  They are not different in kind… than the disclosures discussed in Casey….”  Because the Texas ultrasound requirement is the first requirement of its kind to reach a federal appellate court, this decision is particularly important.  Not only does it affirm the constitutionality of ultrasound laws across the nation (there is currently some form of ultrasound requirement in 21 other states), but it also further substantiates what the pro-life movement has been saying for years: women need ALL available information before choosing abortion.  Information on physical and psychological risks, as well as all of the consequences to the unborn child, must be brought to light for a woman’s consent to be fully “informed.”  Clearly, an ultrasound constitutes “truthful, non-misleading” information, and today the Fifth Circuit agreed.

In what can be described as a judicial “hand-slapping,” the Fifth Circuit advised the lower district court to use today’s decision as “guidance” as that court hears continued arguments from the parties over the enforceability of the Texas ultrasound law.  The same Fifth Circuit panel will hear any subsequent appeals in the case—a good sign for the ultimate fate of the Texas law.

And in the meantime, the ultrasound law can go into effect, allowing women in Texas to see their unborn children before choosing abortion.

AUL advised on the Texas ultrasound bill before its passage, and has advised the Texas Solicitor General in his defense of the law before the Fifth Circuit.

In addition to healthcare reform, U.S. Supreme Court will tackle the implications of assisted reproductive technologies



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The current U.S. Supreme Court session is proving to be an exciting one.  In addition to granting review of healthcare reform cases today, the Court also granted review in Capato v. Astrue—a case involving the rights of posthumously-conceived children.

In this world of assisted reproductive technologies (ART), the facts of this case are all too common.  Mr. Capato, facing chemotherapy for esophageal cancer that could render him sterile, deposited semen in a sperm bank, where it was frozen and stored.  Shortly after his death in 2002, Mrs. Capato began in vitro fertilization (IVF) using the sperm of her late husband.  She conceived, and gave birth to twins 18 months after his death.

While the facts of the case are fascinating, the bottom line is that the Social Security Administration denied Mrs. Capato’s application for surviving child’s insurance benefits on behalf of the twins.  The case has moved through the federal courts, and will now be heard by the U.S. Supreme Court.

At least two other cases involving the rights of posthumously-conceived children—one out of Iowa (Beeler v. Astrue) and one out of Virginia (Schafer v. Astrue)—are also moving through the federal courts.  The various Circuits have reached conflicting results, making the issue prime for Supreme Court review.

AUL has not taken a stance on whether posthumously-conceived children are entitled to social security benefits, and the issue involves analyses of state inheritance rights and insurance benefits.  But these cases demonstrate yet another area where technology has vastly outpaced the law.

These cases also highlight the fact that parents, when considering IVF, are not informed of all of the potential implications of their decisions.  What happens to embryos if the parents separate?  If one parent dies? Or if the parents no longer want to use the embryos?  Do posthumously-conceived children have inheritance rights in the state?  Are IVF-created embryos considered “persons” or “property” by the state?

Most of these questions (and many others) are unanswered—indeed, are unasked—when parents undergo IVF or other forms of ART.  Sadly, only four states require any kind of informed consent before parents undergo the IVF process.  As such, we can only expect more cases like Capato v. Astrue to be filed in state and federal courts.

To assist states in regulating the IVF process and ensuring the health and welfare of both the parents and children involved, AUL has drafted the “Assisted Reproductive Technology Disclosure and Risk Reduction Act,” which is available here.

Majority of Americans support basic abortion restrictions, but conscience protections misunderstood



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On Monday, Gallup published the results of a recent poll demonstrating that “[l]arge majorities of Americans favor the broad intent of several types of abortion restriction laws that are now common in many states, but have mixed or negative reactions to others.”

On one level, the results affirmed what AUL has been saying for years: Americans do not support abortion-on-demand and support commonsense laws that protect both the woman and the unborn child. For example, the majority of states maintain informed consent requirements (31), parental involvement laws (37), and fetal homicide laws (38). According to the poll, 87 percent of Americans support informed consent restrictions, with 69 percent supporting laws requiring a 24-hour reflection period before a woman has an abortion. Similarly, 71 percent of Americans support laws requiring parental consent before a minor obtains an abortion. Even when broken down into partisan numbers, 61 percent of Democrats favor such parental consent laws.

On another level, however, the numbers indicated that more education is necessary to ensure that the American public understands what is at stake in funding abortion providers and in failing to support the conscience rights of health care providers. Gallup reported that 57 percent of Americans oppose laws that prohibit health clinics that provide abortion services from receiving federal funds. In addition, 51 percent of Americans oppose laws allowing pharmacists or other health care providers to opt out of providing medicine or surgical procedures that result in abortion.

These numbers demonstrate the need to further educate the American people (and especially legislators, political pundits, and the media) on 1) the harm inherent in abortion for women, and 2) the constitutional bedrock of conscience in this nation.

First, it is imperative to dispel the myth that “women need abortion.” Touted by financially-interested providers who claim that abortion constitutes necessary “health care” and that women need abortion in order to further their life goals, this myth is eviscerated by medical evidence demonstrating time and time again that abortion carries serious physical and psychological consequences. For example, the majority of women who have abortions do so early in their reproductive lives, and desire to have children at a later date. But at least 114 studies have demonstrated a statistically significant association between induced abortion and pre-term birth in subsequence pregnancies. Women do not need “health care” that places their health, lives, and fertility at risk. Indeed, abortion is not “health care” at all.

Second, conscience protections are rooted in the U.S. Constitution itself. To quote Thomas Jefferson, no provision in the Constitution “ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.”

Moreover, the connection between the war on health care rights of conscience and the advancement of the “abortion right” cannot be overemphasized. Recent events demonstrate this connection. In 2010, the Food and Drug Administration approved the drug ella as a contraceptive. In other words, it is now available by prescription nationwide. However, ella is not truly a “contraceptive” as we generally understand the term; instead, it is of the same class of drugs as the abortion drug RU-486 and can act to kill an already-implanted embryo. Thus, if the conscience rights of pharmacists are not protected, pharmacists will be forced to provide ella and other abortion drugs.

In sum, the Gallup results are cause for both encouragement and concern. It is the goal of AUL to ensure that with more education on the harms of abortion, the need for abortion restrictions, and the importance of conscience protections, these numbers will continue to grow more pro-life with each passing year.