Appeals Court Blocks Enforcement of South Dakota Informed Consent Law.

Last month a split federal appeals court panel ruled that South Dakota may not enforce its 2005 informed consent law. Although the outcome was very regrettable, a brilliant 23-page dissent highlighted how and why the law was constitutional.

Last year, almost before the ink was dry, Planned Parenthood sped into court and persuaded Judge Karen E. Schreier of the Federal District Court in Rapid City, South Dakota, to issue a preliminary injunction that blocked enforcement of South Dakota's law before it ever took effect. Fast forward to October 30.

By a 21 vote, the St. Louis-based 8th U.S. Circuit Court of Appeals' panel largely mirrored Judge Schreier's opinion, handed down in June 2005. The effect of the ruling is to return the case to Schreier who can either schedule a trial or give Planned Parenthood what it wantsa summary judgment.

But, as almost always is the case, the dissent, written by Judge Raymond W. Gruender, made not only for more interesting reading but also for more thoughtful analysis than Judge Diana E. Murphy's and Judge Michael J. Melloy's majority opinion.

Murphy and Melloy essentially picked up on Judge Schreier's conclusions. For example (as the New York Times summarized it), "Requiring doctors to convey information that they do not believe can violate the First Amendment."

Adam Liptak then quoted from the decision written by Judge Murphy: "Governmentally compelled expression is particularly problematic when a speaker is required by the state to impart a political or ideological message contrary to the individual's own views."

Murphy also argued (Liptak wrote) that "the written exchange of information and the doctor's certification that the patient understood it may amount to an undue burden on the right of abortion."