Your Weekly Liptak Lovefest

This love for Liptak is becoming something of a weekly tradition. He’s just been writing such damn good columns.

Today – behind the TimesSelect curtain – Liptak takes on laws that require doctors to follow a certain script when they counsel women seeking abortions. There’s a new law of this sort out of South Dakota (a leader in women-hating (TM)) that is now working its way through the federal courts. The law would require doctors to tell women seeking abortions that through the abortion they will: “terminate the life of a whole, separate, unique, living human being.” Planned Parenthood challenged the law, arguing that it violates the sanctity and privacy of the doctor-patient relationship. Planned parenthood argues that the state cannot make doctors into its mouthpieces, requiring doctors to say whatever the state wants. The state argues it can do exactly that, and asks what’s wrong with requiring doctors to “tell the truth”? Suuure. How much more special interest money would it take, I wonder, for the state to require doctors to tell patients that smoking is good for them (again) or that coal power plants don’t actually cause pollution that leads to asthma?

The district court struck down the law, and the 8th Circuit Court of Appeals heard the appeal in the spring. Liptak says the court seems poised to uphold the law. As Liptak notes, the law implicates not only privacy jurisprudence, but also the First Amendment.

This law isn’t the first of its kind. In 1991, in Rust v. Sullivan, the Supreme Court upheld a law that banned recipients of Title X funding from “promoting” abortion or from including abortion in options counseling. (NB: it was in the brief for this case that then Deputy Solicitor General (now Chief Justice) John Roberts argued that the Court should overturn Roe.)

And of course, states have been passing laws for decades now requiring doctors to tell a patient that a fetus might feel pain (though there is no evidence that this occurs earlier than 24 weeks in pregnancy), or that their abortion might lead to all sorts of maladies (also not proven). But this law – which requires doctors recognize fetal personhood – goes even further.

It’s also clear – as Liptak notes – that this law is in keeping with the Supreme Court’s paternalism, exhibited most obviously and recently in Gonzales v. Carhart. As Justice Kennedy wrote in his now-infamous opinion, “The state has an interest in ensuring so grave a choice is well informed.” (The choice is grave, of course, because “it seems unexceptional to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.”)

It’s all enough to make your head spin. Liptak writes that South Dakota’s law stops short of recent Supreme Court jurisprudence in that it’s not an all-out ban on an abortion procedure, simply another obstacle that women and doctors must surmount before an abortion can be performed. Here, despite my love for Liptak, I have to say I disagree. Sure, the law is not a ban on its face. But it operationally takes away any chance at informed consent. When doctors are required to be mouthpieces for the state, and in such a patently illegitimate way, and are required to answer women’s questions in accordance with the law, it robs women of any real hope of truly informed consent. The law makes the Court’s fulfills the virtually self-fulfilling prophecy the Court laid out in Carhart.