Can the Government Require Doctors to Provide Misleading Information to Patients Seeking Abortions? A Federal Appeals Court Says No, but Means Yes

Last month, in Planned Parenthood v. Rounds, the U.S. Court of Appeals for the Eighth Circuit upheld a provision of a South Dakota law that requires physicians, as part of obtaining a woman’s informed consent to an abortion, to inform her that one of the “known medical risks of the procedure and statistically significant risk factors” is an “increased risk of suicide ideation and suicide.”  The court sustained the provision even while acknowledging that the medical literature shows only a correlation, not a causal relation, between abortion and suicide—a correlation that very likely results entirely from the underlying factors that lead women to seek an abortion in the first place.  There is, in other words, no real evidence that abortion causes suicide.

In rejecting the plaintiffs’ argument that the South Dakota law unlawfully infringes upon the constitutional rights to abortion and freedom of speech, the federal appeals court offered a specious argument.  Yet, as I shall explain in this column, there is little reason to think that the Supreme Court will correct the error.  The high Court is unlikely to grant review in the first place and if it does, its recent abortion cases suggest that the Justices are no less capable of sophistry than their colleagues on the Eighth Circuit.

Informed Consent

If South Dakota legislators and voters had their druthers, they would outlaw nearly all abortions, but because Roe v. Wade is the law of the land, they settle for the next best thing: enacting laws that make it difficult for women to obtain abortions, and then defending those laws in court when they are—inevitably—challenged.  The recent Eighth Circuit ruling is the latest episode in this ongoing battle.

The plaintiffs challenged various provisions of the South Dakota law, some of which were struck down by the federal district court and a three-judge panel of the Eighth Circuit.  Last month’s ruling was by the en banc Eighth Circuit—that is, by all of the Circuit’s active-duty judges.  It concluded that the mandated suicide-risk disclosure was valid.

Why did the en banc court so hold?  Its reasoning began with the uncontroversial proposition that the government may require a doctor to obtain a patient’s informed consent to a medical procedure, even though doing so forces the doctor to provide information that he or she might not otherwise choose to disclose.  Such required disclosures interfere with the doctor’s free speech and professional judgment, but they do so in a way that has long been accepted as legal.  For example, the traditional common law of torts permitted a patient to sue a doctor for battery if the doctor performed surgery without the patient’s consent (absent some extenuating circumstance, such as a medical emergency during which the patient was unconscious).  And modern state tort law insists that such consent be informed by a doctor’s disclosure of relevant risks.

But surely there are limits to what the state may require a doctor to say under the rubric of informed consent.  To give an extreme example, a state could not require that a doctor warn patients against voting for a Democratic (or Republican) candidate as a prerequisite for performing a colonoscopy.

The Eighth Circuit en banc court, relying on language in Supreme Court decisions, summarized the relevant principle this way: States may mandate disclosures as part of obtaining informed consent, so long as those disclosures are neither false nor misleading.

That principle is sound, but the court’s application of it was not.

Can the State Mandate That False or Misleading Disclosures Be Made?

Cases upholding abortion regulations requiring disclosures have emphasized, in so doing, that those disclosures were neither false nor misleading, thus strongly suggesting by negative implication that the Constitution forbids mandated false or misleading disclosures.

And for good reason.  Because informed-consent laws infringe a doctor’s professional speech, the state must have some substantial reason for the infringement.  We need not fret over whether the state’s justification must constitute what the case law terms a “compelling” interest or something less.  At the very least, the state would have great difficulty justifying a mandate that doctors misinform patients.

To be sure, we can imagine circumstances in which a doctor herself might think that misleading or lying to a patient is sensible: An unjustifiably rosy prognosis might be thought to lift a sick patient’s spirits and thus encourage him to take steps to fight a disease; or, in other cases, an overly negative warning might be thought necessary to induce a patient to cease engaging in dangerous behavior, such as smoking or consuming alcohol.

But the fact that a doctor might think it would do some good to mislead or lie to a patient under certain very limited circumstances does not mean that the government may require a doctor to mislead or lie to patients.  And in any event, the suicide-risk disclosures at issue in the South Dakota case do not fall within the category of “white lies” that a doctor might tell for a patient’s benefit.

Nor did the Eighth Circuit en banc court say that the mandated suicide-risk disclosures could be justified on the ground that lying or misleading the women seeking abortions was warranted.  On the contrary, the court found the mandated disclosure to be true and non-misleading.  But its reasoning left much to be desired.

A Misleading Definition of Misleading

The district court had before it studies that showed some correlation between abortion and suicide.  However, none of that evidence showed that having an abortion causes a woman to be at greater risk for suicide.  By far the stronger inference from the data is that the sorts of factors that make women more likely to experience an unwanted pregnancy and therefore seek an abortion—such as emotional distress, domestic violence and socioeconomic disadvantage—also make them more likely to commit suicide.

And indeed, the Eighth Circuit en banc majority admitted that the record did not support an inference that abortion causes suicide.  Why then, did the majority nevertheless uphold the mandated warning?

The court said that the South Dakota law does not actually require doctors to inform women that abortion causes suicide; it requires only that women hear that abortion is associated with an increased risk of suicide, and as used in its scientific sense, “association” does not imply causation.

That point is true but it is also wholly irrelevant, because most women seeking abortions are not scientists and they will therefore assume—incorrectly—that they are hearing about a link between abortion and suicide because abortion causes suicide.  Otherwise, the warning will make no sense.

Under the en banc majority’s reasoning, an oncologist advising a patient to have a malignant tumor removed could be required to inform the patient that having cancer surgery is associated with an increased risk of dying of cancer.  Of course it is, because people who have cancer surgery already have cancer, and so they are at a higher risk of dying of cancer than the population as a whole.  But a patient who hears such a warning will naturally think that the cancer surgery itself will put her at greater risk of death from cancer than would leaving her cancer untreated, which is false.

Thus, even if the Eighth Circuit en banc majority’s construction of the South Dakota statute can be said to have rendered the mandated warning true in some technical sense, the warning remains highly misleading.  The court nonetheless found it non-misleading because Planned Parenthood did not “show that abortion has been ruled out, to a degree of scientifically accepted certainty, as a statistically significant causal factor in post-abortion suicides.”

That characterization of the evidence is arguably true, but it is also irrelevant, because the South Dakota law requires that suicidal ideation and suicide be described as a “known risk” of abortion.  Even if it is theoretically possible that some future study or studies might show that abortion increases the risk of suicide, such a causal relation is not currently “known.”  Thus, the mandated warning is not only misleading; to the extent that it implies causation (and most women seeking abortions will reasonably conclude that it does imply causation), the warning is outright false.

Don’t Count on the Supreme Court to Correct the Misleading Warnings the Eighth Circuit Let Stand

Despite its flaws, the Eighth Circuit en banc ruling will not likely be reversed by the Supreme Court, for three reasons.

First, the case does not necessarily warrant review under the Court’s criteria.  No other circuit court has considered the constitutionality of a mandated warning that abortion increases the risk of suicide.  Thus, there is no disagreement among the lower courts warranting resolution by the Supreme Court.

Second, the plaintiffs might not even choose to seek review.  Losing in the Eighth Circuit no doubt stung, but for the plaintiffs, losing in the Supreme Court could nationalize a negative outcome.  And there is good reason, based on prior Supreme Court precedent in this area, for the plaintiffs to worry that they could lose in the Supreme Court.

That takes us to the third and final reason that the Supreme Court is unlikely to remedy the injustice of the Eighth Circuit en banc ruling: The Eighth Circuit borrowed its key analytical move from the Supreme Court itself.

In the 2007 case of Gonzalez v. Carhart, the Justices were faced with a challenge to the federal Partial Birth Abortion Ban Act. In the course of upholding the Act, the majority validated the concern that women who have “partial-birth” abortions may later become depressed about what they have done—even though the Court admitted that there were “no reliable data” to support such an inference.  No matter, the Court said, because women could come to experience regret.  As in the Eighth Circuit en banc decision in Planned Parenthood v. Rounds, so too in the federal partial-birth case, the absence of evidence disproving the premise of the government’s abortion regulation somehow provided a sufficient basis for upholding legislation infringing the abortion right.

Stephen Colbert has jokingly said that “Reality has a well-known liberal bias” in reference to the tendency of some conservative politicians and pundits to—how to put this?—make stuff up.  One expects better of the judiciary, however.  Yet the tendency appears to have spread.  At least when abortion is at issue, now even federal judges and Justices are willing to turn intellectual somersaults to circumvent inconvenient truths.

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