Monday, February 7, 2011

House Bill 1217: An Undue Burden on Women in South Dakota

We are pleased to have a guest post from Melanie Clatanoff, one of our out-of-state friends.  Below are Melanie's thoughts on the legalities of HB 1217.

House Bill 1217: An Undue Burden on Women in South Dakota

It doesn’t matter whether House Bill 1217 is morally right or wrong: it’s illegal.
Melanie Clatanoff, Esq.

I have read South Dakota’s proposed House Bill 1217.  As an uncompromising pro-choicer, it enrages me.  But I’m not writing now to discuss whether this bill is morally right: I’m writing to discuss whether it is legal.  The issue of abortion is often litigated, and the parameters of a state’s powers are well defined by Supreme Court jurisprudence.  House Bill 1217 violates the Supreme Court’s undue burden standard from Planned Parenthood v. Casey (505 U.S. 833, 1992). 
Lawmakers must answer to the Constitution.  In 1992, with Casey, the Supreme Court revamped abortion law in a largely anti-choice decision.  The legislature of South Dakota is bound by this decision.  As activists from all sides of this issue duke it out in Pierre over this bill, remember that it doesn’t have to be about morality: the law is clear on a state’s power to restrict abortion pre-viability, and 1217 is on the wrong side of the law.

Casey’s Undue Burden Standard

Planned Parenthood v. Casey litigates five different Pennsylvania laws restricting abortion.  It upholds four of them.  The decision set forth an undue burden standard for deciding whether a state statute is unconstitutional: “only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause” (Casey, at 847).
This standard is largely bad news for the pro-choice movement, as it recognizes that states have the right to push “life” and advocate a clear anti-abortion agenda.  A regulation has to have the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” (Id., at 877, emphasis added) to be unconstitutional.  Regulations that “express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose” (Id.).  In Casey, the only restriction found to be a substantial obstacle was a law requiring married pregnant women to inform their husbands they were obtaining an abortion.  Casey upheld a 24-hour waiting period and an informed consent statute, two regulations that relate to HB 1217.

 “Informed Consent” in Casey and in House Bill 1217

HB 1217 is presenting itself as an informed consent statute.  Casey held, “requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to insure an informed choice” (Id., at 883).  Although HB 1217 purports to mirror this Pennsylvania regulation, a quick reading of the South Dakota bill demonstrates that both its purpose and its effect are to place a substantial obstacle on a woman’s ability to make an informed choice.
There is a world of difference between a Pennsylvania statute requiring that a woman be informed of the availability of information or resources, and dictating where, when, how, and what information a woman hears when making a choice.  HB 1217 does not propose to ensure that every woman contemplating abortion receives information that is “truthful and not misleading” (Id., at 881).  Casey allows states to ensure informed consent between a doctor and his pregnant patient.  HB 1217 stretches Casey beyond recognition, permitting any number of hoops for women to jump through, without any rational relation to a woman’s medical or psychological well-being.
                This supposed “informed consent” bill also encroaches upon a physician’s first amendment rights and the doctrine of physician-patient privilege.  It forces doctors to refer women to religious or other counseling centers he or she might disagree with, and forces a woman to seek medical advice from someone other than her chosen medical provider.  Casey also touches upon these issues, and notes that the only reason the Pennsylvania informed consent provision was valid is that it did not involve a “straightjacket” of particular information which must be given in every case (Id., at 883).  The Pennsylvania statute allowed doctors to skip informing patients about the developmental stage of the fetus and about adoption options if the doctor could demonstrate (by a preponderance of the evidence) that she reasonably believed furnishing the information would result in a severely adverse effect on the physical or mental health of the patient.  The Court held that the Pennsylvania informed consent statute “does not prevent the physician from exercising his or her medical judgment” (Id., at 884).
                HB 1217 will remain unconstitutional until it is modified to include some of Pennsylvania’s safeguards.  As is, it lacks Pennsylvania’s escape-valve for doctors who believe that a visit to an anti-choice clinic threatens their patients’ individual health.  More fundamentally, it mandates “straightjacket” information from state-registered anti-choice facilities instead of mandating that women be informed of the availability of resources outside her doctor’s office.

Casey and Coersion

                As a final kick, much of HB 1217 seems to mirror the one provision of Pennsylvania law actually struck down in Casey.  The Supreme Court held that spousal notification put some women (far less than 1% of the women who might seek abortion in Pennsylvania, the Court held) in fear of coercion or abuse (Id., at 894).  A negative effect even on this small set of women constituted an unfair burden (Id.).
                Let’s pretend that the purpose of mandating specific anti-choice counseling is not to place a substantial obstacle on a woman’s decision, but is instead to ensure informed consent.  Under the factual findings adopted in Casey, this counseling will still have the effect of a substantial obstacle.  If women do confess to their doctor or to a state-registered clinic that they are being coerced, Casey found that this would unfairly force women to “reveal their most intimate decision-making” to their doctors, and that, “the confidentiality of these revelations could not be guaranteed, since the woman's records are not immune from subpoena” (Id., at 888-889).  This is especially true as HB 1217 mandates that the government-registered clinics’ reports be a permanent part of the woman’s medical file.  This information about an abused woman’s family life endangers her and her children as long as it is part of her medical record.  According to the Supreme Court:
“Secrecy typically shrouds abusive families. Family members are instructed not to tell anyone, especially police or doctors, about the abuse and violence. Battering husbands often threaten their wives or her children with further abuse if she tells an outsider of the violence” (Id., at 889-890).
                It is a violation of Casey that a woman’s confessions to her doctor or to a clinic should be written down, passed between offices, made a permanent part of her medical file, and used as grounds for the state to deny her an abortion.

HB 1217’s coercive aspect is secondary to the more obvious point that the very purpose of HB 1217 is to create an undue burden, in violation of the law.  This bill is intelligently crafted in an attempt to hide behind Supreme Court jurisprudence. It imitates valid informed consent provisions.  I hope opponents will be able to see through the bill’s language, hopefully invoking legislative history and other smoking guns, to prove that HR 1217’s sole purpose and inevitable effect are an illegal undue burden on a woman’s right to choose.

Melanie Clatanoff is a member of the New York Bar and a graduate of the University of Minnesota Law School, where she was an active member of Law Students for Reproductive Justice.  She works for the federal government in Northern Virginia.

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