Their intent was to come up with this report that would somehow justify the ban on all abortions," Looby sighed. "I mean, it was a well-orchestrated, well-planned process.
- SD PP's Kate Looby referring to the SD legislature's Task Force on Abortion

In 1991, Feminists for Life's amicus brief in Bray v Alexandria Women's Health Clinic held a seance of 19th century feminist icons to produce them as witnesses against 20th, now 21st, century women's right to an abortion and in support of violent clinic protester Michael Bray. His wife Jayne was recruited to petition the case on his behalf and attempted to cloak this support of violence in terms of feminism and women's rights. The puppeteering of early feminists like Susan B. Anthony and Elizabeth Cady Stanton was dishonest history at worst (aided by Marvin Olasky) and horrid scholarship at best.

FFL intervened in that matter to prevent women who seek abortions from being determined a "class" by the Court, and thus, clinic violence (and Op Rescue) being made to pay for class animus. Hey, they said. Feminists have always been against abortion and ain't we women? In the same breath they said clinic violence has nothing to do with women, except to save them from their own regrets. John Roberts, then Solicitor General, now Chief Justice of the US Supreme Court, agreed. FFL then made a two-decade cottage industry out of dividing and conquering women and ramping up pseudo-scientific efforts that would make stripping women of their rights a winning 'prowoman' strategy for religious ideology. John Roberts waited.

In the long and winding road from Bray to the 8th Circuit Ct. of Appeals decision last week in Planned Parenthood v Rounds, et al., arising out of South Dakota, we've been put through some headspinning and conflated polemics by antiabortion activists and lawyers and legislators. In a law review published recently, after the Supreme Court's funky rulings in Gonzales v Carhart but prior to the 8th Circuit opinion, Ronald Turner says of the "women's regret" strategy

Positing the postabortion syndrome in books and articles; determinedly adhering to the theory in the face of the opposition of scientists and established organizations and others; filing amicus briefs calling judicial attention to antiabortion advocates’ concerns about “women’s regret” and postabortion psychological and other problems; obtaining express recognition of those concerns in a published opinion by a federal appellate court judge; playing an active and prominent role in South Dakota’s study of and effort to outlaw abortion: all of these actions were part of a committed and perseverant campaign to rewrite the narrative and to change the terms of the abortion-rights debate. This sustained politico-legal movement has now achieved one of the desired objectives of the antiabortion position—the Supreme Court’s placement of its imprimatur on the “women’s regret” rationale.

Ironically, just as Catholic lawyers and FFL had argued in Bray that women seeking abortions don't represent a "class", 15 years later in Carhart II, where the issue was the so-called partial birth abortion procedure, Turner notes that Justice Kennedy (one of the 5 Catholic Justices for the alarming majority opinion)

states that “some women” (we are not told what percentage or how many) regret their decision to have a “partial-birth” abortion, but when this rationale is proffered as a justification for the total ban of the at-issue procedure, the operative meaning of “some women” is, in effect, “all women.” Thus, because “some women” (a few? many? most?) may later regret their decision, no woman may consider and make her own decision about the safer or safest procedure with the lower or lowest medical and health risks given her particular circumstances and medical needs. Kennedy’s approach to and discussion of the issue erases the “woman-decision-protective” right and places in its stead a “women-protective” regret rationale... .

Enter PP v Rounds, et al., the "et al." being Harold Cassidy, Abstinence Clearinghouse queen Leslee Unruh and her interests in SD's 'crisis pregnancy centers'. The 2005 Informed Consent Act of the SD legislature is at issue in this matter - the Ct. of Appeals only decided the challenge to the preliminary injunction in the recent ruling and the rest now goes back to the District Court in Rapid City. Still, the damage has been done, first with Kennedy's bizarre opinion in Carhart and now with the 8th Circuit majority voting in favor of the ideological findings of the farcical SD Task Force on Abortion and the weird science of David Reardon, who first urged antichoicers to support Feminists for Life because it would 'divide the enemy' and drive the "women's regrets" legislative strategy.

If you're not concerned yet consider a few of the remarks from the dissenting opinion in PP v Rounds:

___The provisions of this Act go far beyond the informed consent laws which have been upheld by the Supreme Court and the courts of appeal against constitutional challenges.12 The unique features in the Act include the extent of its interference with the doctor patient relationship, the nature of the information it forces the attending physician to transmit to the woman patient, the requirement that doctors certify that their patient has understood the state's messages, and the provision that any question raised by a woman be attached to her personal and permanent medical record.

__The Act more than likely violates the First Amendment by compelling doctors to communicate the state's ideology since the statutory definition of "human being" incorporates the metaphysical viewpoint that a “human being” is “living . . . from fertilization.”

__ But if "the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message." Wooley, 430 U.S. at 717.

__Under the Act a woman is given a Hobson's choice: either to certify that she understands vague and ideological statements disguised as medical information or to carry her pregnancy to term. But "[a] Hobson's choice, of this sort, is no choice at all." Planned Parenthood of Idaho, Inc. v. Wasden, 376 F. Supp. 2d 1012, 1018 (D.Idaho 2005)

__ Entirely omitted from the advisories ordered by the state is the authoritative information that the patient has a constitutional right to choose to have an abortion. See, e.g., Casey, 505 U.S. at 846.

__Section 7 requires the attending physician to advise the patient in writing that an abortion "terminate[s] the life of a whole, separate, unique, living human being" with whom she enjoys an existing constitutionally protected relationship, which ends with an abortion. See §§ 7(1)(b)-(d). The physician must also tell the patient that significant risks of an abortion include depression, suicide, and suicidal ideation. See § 7(1)(e)(i)-(ii). The patient must sign each page of the state's required messages, certifying that she understands them. § 7(1) ¶ 1. Any questions she may ask or explanations she may seek, as well as the physician's responses, must be reduced to writing and placed in the patient's permanent medical record. § 7(1) ¶ 1. After physicians have complied with these requirements, they must then certify their satisfaction that the patient has read the materials and that she "understands the information imparted." § 7(1) ¶ 2. These are unique requirements, unlike those contained in other informed consent laws.

__ Although a state may use its own voice to "show its profound respect" for fetal life, Carhart II, 127 S.Ct. at 1633, nowhere did the Supreme Court authorize a state to commandeer the voice of a physician to disseminate its ideological message.

__The legislative determinations with respect to the state's view that abortion results in significantly increased risks of depression or even suicide are highly questionable in light of medical studies in the United States and abroad which have refuted the theory that women undergoing abortions suffer from long term emotional harm or are more at risk than women who carry their pregnancy to term. A learned commentator has pointed out that the § 7(1)(e) provisions "very likely . . . require physicians to disclose information that is false." See Post, supra, at 961 (emphasis added); see also Carhart II, 127 S.Ct. at 1649 n.7 (Ginsburg, J., dissenting) (citing numerous peer reviewed studies suggesting that no evidence of postabortion syndrome and related depression exists). As a 2006 Congressional report on the subject pointed out, "there is considerable scientific consensus that having an abortion rarely causes significant psychological harm." United States House of Representatives, Minority Staff, Special Investigations Div., Comm. on Gov't Reform, False and Misleading Health Information Provided by Federally Funded Pregnancy Resource Centers at 11 (2006).

Yet another abortion ban will be on the ballot in South Dakota this fall after voters rejected the near total ban in 2006. Leslee Unruh and the YesforLife people claim that the "exceptions" for rape and incest voters "wanted" in 2006 are in the new initiated measure. Sure, if you don't mind wandering through a police state to get a medical procedure. More on that later, I promise. Meanwhile, you can read the ballot measure, Ronald Turner's law review and the 8th Circuit's PP v Rounds ruling over here.

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