All 11 active judges of the U.S. Court of Appeals for the 8th Circuit in St. Louis recently heard one of the most important abortion cases in the federal courts today. The case, Planned Parenthood v. Rounds, involves a South Dakota statute requiring informed consent before a woman undergoes an abortion. While many in the media have focused on the controversies surrounding President Obama's health care law, this case actually is one of the most significant events on the life issue today.
The hearing focused on what the courts have called "the suicide advisory": the statute's requirement that abortion providers give patients "a description of all known medical risks of the procedure and statistically significant risk factors ... including ... depression [and] increased risk of suicide ideation and suicide."
This case is the latest example of how the lower federal courts repeatedly have tied up reasonable abortion regulations for years, preventing the regulations from taking effect, even when there is direct language from prior Supreme Court decisions supporting the purpose of the law.
The South Dakota law has been bottled up in the courts since it was enacted in 2005 and Planned Parenthood filed suit to block its implementation. In 1992, the Supreme Court reaffirmed that the states have "a substantial governmental interest justifying a requirement that a woman be apprised of the health risks of abortion and childbirth. ... It cannot be questioned that psychological well-being is a facet of health. ... In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible."
In 2007, the Supreme Court made it more explicit in its latest abortion case: "Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort. ... Severe depression and loss of esteem can follow. ... The State has an interest in ensuring so grave a choice is well informed."
The court also reiterated that "state and federal legislatures [have been given] wide discretion to pass legislation in areas where there is medical and scientific uncertainty."
That gap has largely been filled. In the past decade, a growing number of international medical studies have provided important new data.
The South Dakota statute does not mention or require any statement of causation (that abortion causes suicide). Instead, the statute requires a description of the "increased risk" of suicide after abortion, and that is what the medical studies address.
Americans United for Life filed the lead amicus brief on the documented medical evidence demonstrating the association between abortion and suicide, a brief that was resubmitted at the request of the court in December. The brief was filed on behalf of Christian Medical & Dental Associations, American Association of Pro-Life Obstetricians & Gynecologists, Catholic Medical Association, Physicians for Life, and National Association of Pro-Life Nurses.
Numerous peer-reviewed medical studies have found an association between abortion and suicide. Many others have found an association between induced abortion and depression, which is a major risk factor for suicide. In fact, between 10 percent and 30 percent of women suffer serious, prolonged negative psychological consequences after abortion.
A 1995 study by A.C. Gilchrist in the British Journal of Psychiatry found that in women with no history of psychiatric illness, the rate of deliberate self-harm was 70 percent higher after abortion than after childbirth.
A 1996 study in Finland by pro-choice researcher Mika Gissler in the British Medical Journal found that the suicide rate was nearly six times greater among women who aborted than among women who gave birth.
A 2002 record-linkage study of California Medicaid patients in the Southern Medical Journal, which controlled for prior mental illness, found that suicide risk was 154 percent higher among women who aborted than among those who delivered.
By 2003, the data was so compelling that a team of researchers published in the Obstetrical & Gynecological Survey (OGS), one of the top three obstetrical journals in the United States, identified a number of studies that found that "induced abortion increased ... [the incidence] of mood disorders substantial enough to provoke attempts at self-harm" and concluded that, as a matter of medical ethics, "any woman contemplating an induced abortion should be cautioned about the mental health correlates of an increased risk of suicide or self-harm attempts as well as depression."
A 2005 study by Mika Gissler in the European Journal of Public Health found that abortion was associated with a six-times-higher risk for suicide compared to birth.
A 2006 study by New Zealand researcher David M. Fergusson in the Journal of Child Psychology and Psychiatry, which controlled for a prior history of depression and anxiety and suicidal ideation (wanting to take one's own life or thinking about suicide), found that 27 percent to 50 percent of women after abortion reported suicidal ideation. Mr. Fergusson found that the risk of suicide was three times greater for women who aborted than for women who delivered.
A 2010 study by Natalie P. Mota in the Canadian Journal of Psychiatry found that "abortion was associated with an increased likelihood of several mental disorders - mood disorders ... substance abuse disorders ... as well as suicidal ideation and suicide attempts."
Finally, last September, a meta-analysis in the British Journal of Psychiatry found an 81 percent increased risk of mental trauma after abortion.
Planned Parenthood's objections to giving this information to women are that the "experts," such as the American College of Obstetricians and Gynecologists (ACOG) and the American Psychological Association (APA) officially dismiss such risks. A report by the APA in 2008, however, disregarded a number of studies finding an increased risk and chose to focus on a small number of studies that lacked comparison groups and sufficient statistical controls.
In light of these studies in peer-reviewed, international medical journals, there can be no reasonable doubt that information about the "increased risk" of suicide after abortion is "truthful, non-misleading information."
If given proper weight, these studies amply satisfy the discretion the Supreme Court has recognized to require that women be informed about medical risks. It is time for the federal courts to get out of way of the authority of state legislatures, supported by majority public opinion and reaffirmed by the Supreme Court, to ensure that women get full information about the risks of abortion.
Clarke Forsythe is senior counsel for Americans United for Life and Mailee Smith is staff attorney for AUL. They assisted in drafting AUL's amicus brief in Planned Parenthood v. Rounds.
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