The U.S. Court of Appeals for the Eighth Circuit Approves An "Informed Consent" Requirement for Abortions: The Slippery Quality of Statutory Definitions

By SHERRY F. COLB


Wednesday, Jul. 9, 2008

A few weeks ago, an en banc panel of the U.S. Court of Appeals for the Eighth Circuit vacated a preliminary injunction in Planned Parenthood v. Rounds, a case involving both abortion rights and the First Amendment. The case arose because in 2005, South Dakota passed a new version of a statute that required abortion providers to convey specified information to patients who were about to receive an abortion. Under the new law, the doctor would have to inform the pregnant woman “that the abortion will terminate the life of a whole, separate, unique, living human being.”

Before the enacted law went into effect, Planned Parenthood moved to enjoin its enforcement, arguing – among other things – that it would compel doctors to convey the government’s ideological message in violation of the First Amendment. A federal district court granted Planned Parenthood a preliminary injunction on First Amendment grounds, prohibiting enforcement of the statute pending ultimate review on the merits. However, as noted above, the Eighth Circuit, en banc, vacated the preliminary injunction that had been in effect, holding that Planned Parenthood had not demonstrated that it was likely to succeed on the merits of its First Amendment claim.

The court concluded that the mandated speech expresses biological facts, rather than an ideological viewpoint. It based this conclusion on the definition of “human being” provided in another section of the statute: “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.”

When we look to the definition to understand the language in the informed consent script, the court reasoned, it turns out that the provider is conveying unobjectionable, neutral facts about pregnancy and its termination, not an ideological position. The First Amendment notably does not prohibit the government from requiring doctors to convey factually accurate information about a medical procedure to their patients, so – by the court’s logic – there is no First Amendment violation here.

In this column, I will examine the court’s reliance on the statute’s definition of “human being” and expose why it may be misplaced.

Informed Consent to a Medical Procedure

Ordinarily, when a patient decides whether to undergo a medical procedure, the law requires his doctor first to provide him with information that will permit an educated decision about the procedure in question. For example, if your surgeon is about to perform an appendectomy on you, she must first explain the benefits and risks of the appendectomy as well as the availability of alternatives and their respective risks and benefits.

By contrast to the old way in which doctors practiced medicine – without very much interference from patients, who were expected to defer to medical judgment – the informed consent approach ideally promotes patient autonomy by allowing one’s own values and priorities to drive one’s medical choices. Some patients might choose to forego chemotherapy treatment for cancer, for instance, after weighing the comparative risk of recurrence against the risks and pain associated with treatment. Others might select a different path. The doctor’s role is to provide care and information, not to preempt patient choice.

In the absence of the special informed consent requirements that govern the termination of a pregnancy, a patient undergoing an abortion – like a patient choosing any other medical procedure – would still be entitled to medically-relevant information. The provider would have to explain (orally or in writing) that abortion carries some risks (of heavy bleeding, for example), and the provider would also have to ensure that the patient understands that after a successful termination, she will no longer be pregnant and will not give birth to a baby. The words of South Dakota’s special, abortion-related informed consent requirement, however, call the patient’s attention to something quite different from the medical costs and benefits associated with the procedure in question.

An Unadorned Pro-Life Instruction: What It Would Look Like, and How It Compares to the South Dakota Instruction

If there were no constitutional limits on what a doctor could be compelled to tell a patient prior to performing an abortion, then one might expect an abortion opponent to craft the following sort of script for the provider:

You are about to end the life of a human being, your son or daughter. In moral terms, what you are asking me to do to you is murder your child, and you are paying me a fee for that murder. That is not very different from hiring an assassin to kill your own flesh and blood, yet the law inexplicably permits you to do so at a time when your child is at his or her most vulnerable. The better decision is to remain pregnant and welcome the baby growing inside your body into the world. If you decide to have an abortion, you will have participated in murder. There is still time to make a different decision. Choose life. Don’t kill your baby.

If this were the mandated language in the South Dakota informed consent requirement, there is no question that it would violate the First Amendment rights of the provider, who is unlikely to share the moral viewpoint articulated above. What makes it an ideological, rather than a factual, statement is that it does not inform the patient of medical facts, having to do with biological risks and benefits of abortion versus the alternative of childbirth. It instead makes a moral argument, equating the personhood of a baby with that of the embryo or fetus inside the woman’s body and equating the termination of a pregnancy with the assassination of a human being. One can accept or reject the moral argument while simultaneously agreeing on all of the biological facts about abortion. That is the essence of an ideological statement.

The South Dakota instruction is not quite this explicit in its moral tone. It does, however, emphasize the ideological over the factual. It tells the woman, for instance, that an “abortion will terminate the life of a whole, separate, unique, living human being.” This statement, like the more explicit hypothetical instruction I outlined above, equates an embryo or fetus with a human being. Whether to consider an embryo or fetus a “human being” or simply a “potential human being” or a “human being in progress” is a moral judgment on which people disagree strongly with one another. “Human being,” in the context of abortion debates, is thus a value-laden term that connotes full membership in the moral community, necessarily entailing the same basic “human rights” that other members possess, including the right not to be intentionally killed.

The Eighth Circuit Court of Appeals acknowledged that “[t]aken in isolation, [the language concerning 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.” The court reasoned, however, that the definition of “human being” in the statute saves the challenged language from classification as a mandatory moral script and moves it instead into the category of factual information. Quoting the U.S. Supreme Court, the Court of Appeals ruled that “when a statute includes an explicit definition, we must follow that definition, even if it varies from that term’s ordinary meaning.’”

The statute at issue in Rounds defines the phrase “human being” as extending to embryos and fetuses of the species Homo sapiens from the moment of fertilization. If an abortion provider were to tell a patient that her embryo or fetus contained human (rather than equine or feline) DNA, this information – though blindingly obvious – would not convey a view about whether an embryo or fetus “counts” morally as a person. The court accordingly treats the words of the informed consent script as though they were actually the words of the statutory definition. Because the latter are value-neutral, the court reasons, it follows that so are the former.

The Fly in the Ointment: Even if the Statutory Definition Is Value-Neutral, the Script Is Not

The Court of Appeals’ reasoning would perhaps be persuasive if an abortion provider could simply substitute the statutory definition for the words “human being.” The law, however, compels the provider to repeat the language itself and therefore the moral content of that language. Indeed, the fact that the statute literally defines a moral term like “human being” to include a morally-controversial entity like an embryo or a fetus exposes the way in which the script at issue conveys moral teachings rather than information.

Consider the following analogy. A judge is about to instruct a jury during the capital phase of a murder trial. Suppose the instruction began with the following words:

“You are about to decide what will happen to this worthless piece of garbage with no right to live that you have found guilty of committing murder….”

Imagine as well that the statute providing for this instruction contained the following definitions: “For purposes of this statute, ‘worthless piece of garbage’ means ‘a defendant convicted of murder in the first degree.’”

Such an instruction would obviously be improper, the definitional section of the statute notwithstanding. Indeed, the definitional section tells us exactly what the problem is: The state is conveying to the jury the moral assessment that a defendant convicted of murder in the first degree is the equivalent of a worthless piece of garbage. Some people might hold this view of a convicted murderer, while others do not, but it represents a value judgment rather than a fact, one that the state has no business conveying to a sentencing jury.

Defining Morality

A woman who visits a clinic and asks for an abortion is entitled to receive factually accurate information about the procedure she is about to undergo. Telling her that she is carrying a “unique human being” does not provide information. It instead conveys the message that her embryo or fetus is a full member of the moral community. It does so not only in spite of, but also because of, the definitional section, which – by declaring a special definition for purposes of the statute – implicitly recognizes that the message represents a contested one, one that challenges rather than conforms to the definition of the term in common usage.

Despite its value-laden content, the government, under existing precedents, may directly communicate with women the view that embryos and fetuses are entitled to consideration and life. And if the doctor shares this view, she too is free to communicate it to her patient. What the government may not do, however, is force doctors to utter ideological statements in the guise of “information.” Such compelled speech violates the doctor’s freedom of speech along with the patient’s right to hear the authentic words of her own chosen health care provider. The state may define a human being as it sees fit, in other words, but it may not force either a doctor or a woman to accept that definition at the risk of criminal penalties. I would therefore, respectfully, dissent from the Eighth Circuit Court of Appeals’ decision.


Sherry F. Colb, a FindLaw columnist, is a Professor at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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