Eighth Circuit Rules South Dakota Abortion Law Is Likely Constitutional

Is your head spinning yet? The reproductive health news is flying fast and furiously today. Bush refuses to join the effort to save women’s lives and prevent unintended pregnancy by denying funding to UNFPA for the seventh consecutive year. Family Research Council unveils an ad targeting Obama for his position on choice. The Senate Appropriations Committee votes for a 25% decrease in abstinence-only funds through the Community Based Abstinence Education program. And now the Eighth Circuit has lifted a preliminary injunction against a South Dakota law that requires doctors to inform patients seeking abortion care that that abortion would "terminate the life of a whole, separate, unique, living human being," deciding that the law is likely constitutional.

The first of its kind in the nation, representing what Cecile Richards describes as "unprecedented legislative interference," this law passed the South Dakota legislature in 2005. A lower court had concluded that the law was likely unconstitutional and had ruled in favor of a preliminary injunction blocking the law from going into effect, as had a three-judge panel on the Eighth Circuit, but today’s en banc Eighth Circuit ruling vacates those decisions.
The court has given South Dakota doctors 21 days to start complying with the law.

Planned Parenthood staff attorney Mimi Liu says the organization had challenged the law as unconstitutional
for compelling speech in violation of the First Amendment. The
court ruled that in this instance compelling speech was likely

Of the six judges who concurred in full with the majority decision, all were appointees of George W. Bush.
Liu notes that it was "surprising" that the majority decision imposed a higher standard of review on preliminary injunction than the lower court had. Explaining the higher standard of review, the majority opinion stated that when reviewing legislation, "we don’t want to pre-empt a presumptively reasonable democratic process."

The four dissenting judges noted that the law promoted the "state’s ideological view of human life" and also expressed reservation at the higher standard of preliminary injunction review.

Liu says that Planned Parenthood has constitutional claims against other objectionable provisions of the bill, including the requirement that physicians tell their patients that abortion "will lead to increased risk of suicidal ideation" and that the patient "has an existing relationship with the unborn that is protected by the US Constitution" in federal district court. Those claims will now move forward.

Liu said that PPFA is still evaluating whether the law requires doctors to read from or recite a script to patients.

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  • the-watcher

    Thank you for not using the phrase "judicial activism." Clearly, that’s what this ruling is, but I’d rather our side rise above hypocrisy. If we have an issue with "judicial activism," then we should have an issue with it; not only as it’s convenient or pertinent to our side. And clearly, no one in their right might actually does, so I propose we avoid using the phrase.


    Since this decision clearly and sharply deviates from established precedent, and conservatives are such staunch proponents of maintaining judicial restraint, I’m confident they’ll soon come out en masse and denounce this activist ruling.


    Anyone else? Heh, thought not.

  • invalid-0

    My Pro-Life group just talked about South Dakota’s great decision and are going to be using it to model such legislation in our state! This is so exciting, then I read on your blog about Bush denying UNFPA’s funding – I wasn’t going to vote for a Republican in the next election but maybe I will!!! Great news! Thanks for your post!